Owens v. Texaco, Inc. Brief in Opposition to Petition for a Writ of Certiorari

    No, 88-1457

In the Supreme Court of the United States
OCTOBER TERM, 1988

BOBBY N. OWENS,
Petitioner,

vs.
TEXACO INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A 
WRIT OF CERTIORARI TO THE UNITED  

STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

April 6, 1989

G r if fin  B. B ell

(Counsel of Record)
D avid F . G uldenschuh  
K ing  & S palding 

2500 Trust Company Tower 
Atlanta, Georgia 30303 
(404) 572-4600

J.M . M itchell 
J a m es  D. G arrison  
M ichael G. M cQ ueeney  
T exaco I nc .

Post Office Box 52332 
Houston, Texas 77052 
(713) 650-4060 

Attorneys for Respondent 
Texaco Inc.

E . L . M endenhall ,  I n c ., 926 Cherry Street, K ansas City, M o. 64106, (816) 421-8030



TABLE OF CONTENTS

TABLE OF AUTHORITIES............ ........................... - n
STATEMENT OF THE CASE......................................  1
REASONS FOR DENYING THE WRIT .... ............ . 5
CONCLUSION ....................... .......................... .............  11



I I

TABLE OF AUTHORITIES

Cases

Burdine v. Texas Dep’t of Community Affairs, 647
F.2d 513 (5th Cir. 1981) ......................................  7

Harbison-Walker v. Brieck, 109 S.Ct. 454 (1988) .... 9
Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.

1979) ................................................................... 7
McPherson v. Texas Dep’t of Water Resources,

734 F.2d 1103 (5th Cir. 1984) ..... ...................... 8
Nix v. WLCY Radio/Rahall Communications, 738

F.2d 1181 (11th Cir. 1984) ...............................  7
Pullman-Standard v. Swint, 456 U.S. 273 (1982) .... 10 
Turner v. Texas Instruments, Inc., 555 F.2d 1251

(5th Cir. 1977) ....................................................  7
United States Postal Service Bd. of Governors v. 

Aikens, 460 U.S. 711 (1983) .............................. 9



No. 88-1457

In the Supreme Court of the United States
OCTOBER TERM, 1988

BOBBY N. OWENS,
Petitioner,

vs.
TEXACO INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A 
WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

Respondent, Texaco Inc. (“Texaco”), respectfully sub­
mits this Brief in Opposition to the Petition for Writ 
of Certiorari in this matter.

STATEMENT OF THE CASE

This case arises out of the layoff of the Petitioner 
Bobby N. Owens from his employment at Texaco on 
April 4, 1983. The opinion of the United States Court 
of Appeals for the Fifth Circuit in this case is reported 
at 857 F.2d 262 and is set forth at pages 24a-41a of 
the Appendix to the Petition. That opinion contains a 
concise and accurate summary of the relevant facts.

Bobby N. Owens, who is black, was originally em­
ployed in 1977 by a subsidiary of Texaco at its Port Neches 
Chemical Plant. On August 18, 1980, he entered a craft 
training program as a “Carpenter Trainee” in the “Ap-



2

prenticeship Classification,” and joined the unit repre­
sented by the International Association of Machinists 
(“IAM”). The 1980 craft training program was the 
fourth such program instituted at the Neches Chemical 
Plant since 1970. These programs trained employees in 
six different craft classifications, who were represented 
by three different unions: the IAM which represented
carpenters (including Mr. Owens), machinists and boiler­
makers; the Pipefitters’ Union (“Pipefitters”) which rep­
resented pipefitters and welders; and the International 
Brotherhood of Electrical Workers (“IBEW”) which rep­
resented instrumentmen and electricians.

With respect to each of these unions, there existed 
a master labor agreement which provided that craft clas­
sification seniority would not commence until the em­
ployee was permanently assigned to a classification (i.e., 
the employee had completed the craft training program). 
In some but not all cases, Texaco had entered into separate 
agreements with each of the three unions providing that 
an employee in a craft training program could obtain 
seniority retroactive to the date he entered the program. 
Thus, for example, with respect to the three training 
classes prior to 1980, the IAM and Texaco had agreed to 
give trainees represented by the IAM retroactive sen­
iority. Similarly, the Pipefitters had agreed with Texaco 
to grant retroactive classification seniority to its craft 
trainees. The IBEW, on the other hand, had never made 
this kind of agreement.

At the commencement of the 1980 training program, 
Texaco entered into discussions with the IAM and the 
Pipefitters regarding retroactive seniority. The IBEW 
did not seek retroactive classification. Texaco proposed 
that retroactive classification seniority be granted to craft 
trainees but only if they actually completed the training



3

program within thirty months. Texaco and the Pipe­
fitters eventually reached agreement on this issue; how­
ever, in discussions between September 1980 and January 
1981, the IAM refused to accept the 30-month limitation 
and no agreement was ever reached regarding retro­
active seniority. As a result of this bargaining deadlock, 
IAM employees in the 1980 training program were gov­
erned by the master labor agreement which provided 
that their seniority would not begin to accumulate until 
they were permanently assigned to the classification at 
the end of the training program.

On or about February 1, 1983, Texaco issued a 60-day 
notice of layoff. At that time, Mr. Owens was still in the 
process of completing the craft training program. Be­
cause he was not eligible for retroactive seniority credit, 
Mr. Owens had less classification seniority than other 
carpenters in the plant, including an experienced (white) 
carpenter, R.L. Simon, who had been hired in 1981, after 
Mr. Owens had entered the training program.

One week after the 60-day notice of layoff, the IAM 
resurrected the issue of retroactive classification seniority 
and requested that it be awarded to its trainees. Be­
cause Mr. Owens was about to complete the craft train­
ing program, the grant of retroactive seniority would 
have placed him ahead of Mr. Simon, the white carpenter 
hired in 1981.

The IAM’s request for retroactive seniority was dis­
cussed among three Texaco plant officials as well as 
Texaco’s in-house labor attorney, Mr. David Sheil. Neither 
the IAM’s request nor the discussions regarding the re­
quest addressed the issue as to the specific employees 
who would be affected by the grant of retroactive se­
niority.



4

Mr. Sheil advised against Texaco’s agreeing to any 
change in the seniority provisions of the existing labor 
agreement after a layoff had been announced. He be­
lieved that it would be less risk to Texaco to follow the 
existing labor agreement rather than adjust seniority by 
entering into a separate agreement after the pending 
layoff had been announced. Based upon Mr. Sheil’s 
legal advice, Mr. Howard Girouard, the Employee Re­
lations Manager for the plant, made the final decision 
to reject the IAM’s proposal. Thus, on April 4, 1983, 
Mr. Owens, as well as one white IAM employee who had 
completed the 1980 craft training program, were laid 
off pursuant to the terms of the seniority provisions con­
tained in the master labor agreement.

The IAM then filed a grievance on behalf of its 
trainees pursuant to the master labor agreement. After a 
hearing, the arbitrator found that the trainees had no 
right to retroactive seniority, that Texaco had properly 
acted pursuant to the master labor agreement, and that 
there was no evidence that Owens was denied seniority 
because of his race.

Mr. Owens also filed a charge of discrimination with 
the EEOC on March 28, 1983. The EEOC found no rea­
sonable cause to believe that Owens’ allegations were 
true and dismissed his charge, issuing a Notice of Right to 
Sue letter on August 17, 1983.

Owens then filed the instant suit. Following a bench 
trial, District Judge Joe Fisher entered a decision finding 
that Texaco had “obviously discriminated]” against Mr. 
Owens by refusing him his right to retroactive seniority. 
On appeal, the Fifth Circuit, in an opinion authored by 
Chief Judge Charles Clark, ruled that there was no evi­
dence in the record to support the district court’s findings 
and that the findings were clearly erroneous. Owens 
then timely filed his Petition for Certiorari to this Court.



5

REASONS FOR DENYING THE WRIT

I. THIS CASE DOES NOT PRESENT THE ISSUE
UPON WHICH PETITIONER URGES THE
GRANTING OF A WRIT.

Petitioner asserts that a writ should be granted in 
this case to address the issue of the impact of a finding 
that a proffered explanation by an employer is not credible 
on the ultimate finding of discrimination in a Title VII 
case. In so doing, petitioner essentially requests this 
Court for an advisory opinion. This case was not re­
solved on a credibility determination and the issue upon 
which the writ is sought is not presented here.

As the Court of Appeals made clear in the opening 
paragraph of its opinion, the judgment of the district 
court was reversed because the findings upon which it 
was based were clearly erroneous. The Court of Ap­
peals found that three principal findings of the district 
court allegedly supporting its judgment were contrary to 
the evidence and could not support the district court’s 
conclusory finding that Texaco’s conduct in this case was 
“obviously discriminatory.”

The Court of Appeals held that there was no basis 
in the record to support the district court’s finding that 
Owens was entitled to retroactive seniority under the 
master labor agreement. The record in this case reflects 
that in the absence of a specific agreement modifying 
the master labor agreement and granting retroactive se­
niority to craft trainees, those trainees had no right to 
retroactive seniority under the terms of the collective 
bargaining agreement. The arbitrator found that there 
existed no right to retroactive seniority and the Court 
of Appeals correctly held that the district court erred



6

in completely disregarding the arbitration award and 
finding some otherwise non-existent right.

The Court of Appeals likewise correctly found that 
the district court erred in finding that there existed a 
“past practice” of Texaco’s granting retroactive seniority 
to trainees. The evidence in the record reflects that 
retroactive seniority had previously been granted craft 
trainees only in separately negotiated agreements be­
tween the individual unions and Texaco. Nothing in the 
record reflects that retroactive seniority was ever given 
to any trainee in the absence of a contract to that effect. 
Indeed, Texaco and the IBEW had never agreed to retro­
active craft classification seniority. With respect to the 
1980 craft training program, the record reflects that 
Texaco and the IAM had been unable to reach any agree­
ment regarding retroactive seniority. There being no 
evidence that Texaco had a retroactive seniority policy 
outside the separate, negotiated contracts, the Court of 
Appeals correctly held that the district court’s reliance 
upon a “past practice” to support a finding of discrim­
ination was clearly erroneous.

Finally, the Court of Appeals held that the district 
court s summary conclusion that Texaco’s reasons for 
refusing to agree to retroactive seniority were not legit­
imate was clearly erroneous. At trial, Texaco’s in-house 
labor attorney, David Sheil, testified that he advised plant 
representatives that retroactive seniority should not be 
granted because changing the seniority list after a layoff 
had been announced would create a greater risk of ulti­
mate liability than not changing it. He further testified 
that at the time he gave this legal advice, he was un­
aware of the race of any particular employee who would 
be affected by his recommendation.



7

Contrary to petitioner’s argument, the district court 
did not find that Shed’s testimony was unworthy of 
belief. Indeed, the district court expressly found that 
Shed had in fact given such advice and that Texaco 
had relied upon it in making its decision. See Findings 
of Fact No. X; Conclusions of Law Nos. VI, IX. At no 
time did the district court chadenge the veracity of Shed’s 
testimony; rather, the district court merely stated that 
it did not agree with the soundness of that legal advice 
and, on that basis alone, found Texaco’s reliance upon 
such advice to be pretextual.

It is wed settled that a trier of fact in a Title VII 
action should not “second guess” an employer’s business 
judgment. “Title VII and Section 1981 do not protect 
against unfair business decisions - only against decisions 
motivated by unlawful animus.” Turner v. Texas Instru­
ments, Inc., 555 F.2d 1251, 1257 (5th Cir. 1977) over­
ruled on other grounds in Burdine v. Texas Dep’t of 
Community Affairs, 647 F.2d 513, 514 (5th Cir. 1981). 
As the Eleventh Circuit observed in Nix v. WLCY Radio/ 
Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 
1984):

“While an employer’s judgment or course of action 
may seem poor or erroneous to outsiders, the rel­
evant question is simply whether the given reason 
was a pretext for illegal discrimination. The em­
ployer’s stated legitimate reason . . . does not have 
to be a reason that the judge or jurors would act 
on or approve.” Loeb v. Textron, Inc., 1 Cir. 1979, 
600 F.2d 1003, 1012 n.6. Although WLCY’s decision 
to fire Nix, and its refusal to reconsider that deci­
sion, might seem unfair or even “incredible” to out­
side observers, Nix cannot prevail in his Title VII



8

action for he has not established discriminatory in­
tent.

As the Fifth Circuit has previously noted: “We do not 
sit to revise employment decisions taken hastily or for 
insufficient reasons, only those taken for illegal ones.” 
McPherson v. Texas Dep’t of Water Resources, 734 F.2d 
1103, 1105 (5th Cir. 1984).

The Court of Appeals in this case correctly held that 
the district judge’s mere disagreement with the legal 
advice provided by Texaco’s in-house counsel did not 
support a finding of pretext pursuant to Title VII. More­
over, whether that legal advice was sound or not, there 
was no finding that the ER Manager, Mr. Girouard, was 
not credible in his testimony that he relied on that legal 
advice in rejecting the IAM’s request to resurrect the 
retroactive seniority issue. Accordingly, the Court cor­
rectly held that the district court’s finding of pretext was 
clearly erroneous.

Petitioner relies upon various alleged conflicts among 
the circuits regarding the role of credibility determina­
tions in Title VII actions as support for granting the 
writ in this case. None of these alleged conflicts, how­
ever, are presented in this case. As is set forth above, 
this case does not involve a disagreement about the sig­
nificance of a credibility determination in a Title VII 
case, nor does it raise the issue of what inference should 
be drawn where the trier of fact finds the employer’s 
proffered explanation unworthy of belief. Compare Peti­
tion at 15-17, 20-25. The district judge never indicated 
that he disbelieved Mr. Shell; he simply disagreed with 
Mr. Sheil’s legal advice. More importantly, the record 
is barren of any evidence that the trial court disbelieved 
Mr. Girouard, the ER Manager who was admittedly the



9

person who made the final decision to reject the IAM’s 
request for retroactive seniority.

Additionally, this case does not present the issue of 
how much additional evidence, if any, a plaintiff should 
be required to produce if his prima facie case is rebutted. 
Compare Petition at 17-20. Once a defendant offers evi­
dence of the reason for an employment decision, the prima 
facie presumption of discrimination drops from the case. 
United States Postal Service Bd. of Governors v. Aikens, 
460 U.S. 711, 715 (1983). The district court has before it 
all the evidence needed to decide the ultimate factual issue 
of whether the defendant intentionally discriminated 
against plaintiff. Id. Here, the decision of the Court of 
Appeals did not turn on the issue of the impact of Owens’ 
prima facie evidence; to the contrary, looking at all of 
the evidence, the Court of Appeals found that the lower 
court’s ultimate finding of discrimination was wholly 
unsupported by the record.

Petitioner urges that this case presents the same 
issue as that raised in Harbison-Walker v. Brieck, 109 
S.Ct. 454 (1988). That is not so. The issue in Harbison- 
Walker was whether a plaintiff could survive summary 
judgment by raising an issue of fact as to the authenticity 
of an employer’s business judgment without presenting 
any direct or indirect evidence that such judgment was 
motivated by an intent to discriminate. See Petition for 
a Writ of Certiorari in Harbison-Walker v. Brieck (No. 
87-271, filed August 17, 1987). Harbison-Walker addres­
sed the standard of proof necessary to obtain summary 
judgment under F.R.C.P. 56. This case stands in a 
markedly different procedural posture in that the de­
cision here was rendered following a two-day bench trial, 
not upon motion for summary judgment.



10

The Court of Appeals correctly noted that there was 
no support in the record for the findings upon which the 
district court based its conclusion that Texaco discrimi­
nated against Mr. Owens. There being no such support, the 
Court of Appeals reversed the lower court’s judgment 
and remanded with directions to enter judgment in favor 
of Texaco.

II. THE COURT’S FINDINGS IN THIS CASE ARE 
CONSISTENT WITH F.R.C.P. 52 AND PULL­
MAN-STANDARD v. SWINT.

Although petitioner does not urge the granting of a 
writ on these grounds, it is to be noted that the Court 
of Appeals’ decision is fully consistent with the standards 
set forth by this Court in Pullman-Standard, v. Swint, 456 
U.S. 273 (1982). In Swint, this Court held:

Rule 52(a) broadly requires that findings of fact 
not be set aside unless clearly erroneous . . . .  This 
Rule does not apply to conclusions of law .. . . [Wjhere 
findings are infirm because of an erroneous view 
of the law, a remand is the proper course unless the 
record permits only one resolution of the factual 
issue.

Id. at 287, 292 (emphasis added).

In the instant case, the Court of Appeals did not make 
de novo findings of fact. To the contrary, the Court of 
Appeals held that the findings upon which the district 
court based its decision were wholly unsupported by the 
record. There being no other basis upon which a trier 
of fact could find discrimination, the Court of Appeals 
correctly directed the district court to enter judgment 
in favor of Texaco.



11

CONCLUSION

For the reasons set forth above, Respondent respect­
fully submits that the Petition for a Writ of Certiorari 
should be denied.

K ing  & S palding 
G r if fin  B. B ell

(Counsel of Record)
David F. Guldenschuh 

2500 Trust Company Tower 
Atlanta, Georgia 30303 
(404) 572-4600

and
J.M. M itchell 
J a m es  D. G arrison 
M ichael G. M cQ ueeney  
T exaco I nc .

Post Office Box 52332 
Houston, Texas 77052 
(713) 650-4060 

Attorneys for Respondent 
Texaco Inc.