Barefield v. Chevron Plaintiffs' Reply to Defendant Chevron U.S.A. Inc.'s Memorandum in Opposition to Motion for Class Certification

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May 21, 1987

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Barefield v. Chevron Plaintiffs' Reply to Defendant Chevron U.S.A. Inc.'s Memorandum in Opposition to Motion for Class Certification preview

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Brief Collection, LDF Court Filings. Barefield v. Chevron Plaintiffs' Reply to Defendant Chevron U.S.A. Inc.'s Memorandum in Opposition to Motion for Class Certification, 1987. 93821e78-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8bc65505-7bae-45ea-bc05-c6f0402fa058/barefield-v-chevron-plaintiffs-reply-to-defendant-chevron-usa-incs-memorandum-in-opposition-to-motion-for-class-certification. Accessed April 29, 2025.

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HENRY HEWITT
JOHN ERICKSON
ERICKSON, BEASLEY & HEWITT
12 Geary Street, 8th Floor
San Francisco, California 94108
Telephone: 415/781-3040
DENISE HULETT
Mexican American Legal Defense and

Educational Fund
604 Mission Street, 10th Floor
San Francisco, California 94108
Telephone: 415/543-5598
BILL LANN LEE
STEPHEN M. CUTLER
Center for Law in the Public Interest
10951 W. Pico Boulevard, Third Floor
Los Angeles, California 90064
Telephone: 213/470-3000
ANTONIA HERNANDEZ
E. RICHARD LARSON
THERESA FAY BUSTILLOS
Mexican American Legal Defense and

Educational Fund
634 S. Spring Street, Eleventh Floor
Los Angeles, California 90014
Telephone: 213/629-2512

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

O R IG IN A L
F S L E D

LAY 8 L I9<37

WILLIAM L. WHITTAKER
CLERK. U.S DISTRICT COURT

NORTHERN DISTRICT Of CALIFORNIA

ARCHIE BAREFIELD, JR., et al.,

Plaintiffs,
v .

CHEVRON U.S.A. Inc.

Defendant.

Case No. C86 2427 TEH
Civil Rights
Class Action

PLAINTIFFS' REPLY TO
DEFENDANT CHEVRON U.S.A,
INC.'S MEMORANDUM IN
OPPOSITION TO MOTION
FOR CLASS CERTIFICATION

CL:73# 9

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................

I. INTRODUCTION ..........................

II. PLAINTIFFS' INDIVIDUAL CLAIMS .........

A. Archie Barefield, Jr..............

B. Cornell B e r t ............. ..

C. Johnny Coffee ...................

D. Pete Flores ......................

E. Leon E. Francies, Jr..............

F. Salvador Monarrez ...............
G. Eulas Thomas ......................

H. DeMelvin Williams ...............

I. Ismael Gonzales .................
III. ARGUMENT ..............................

A. Plaintiffs Are Adequate Class
Representatives .................

B. Plaintiffs' Claims Are Typical of
Class Members ...................

C. Questions of Law or Fact Common To
The Class Are Presented ........

D. The Class Is So Numerous As To Make
Joinder Impracticable ...........

E. The Class Proposed by Plaintiffs Is
Correctly Defined ...............

CONCLUSION .............

i i
1

11
15

TABLE OF AUTHORITIES

Cases
Atonio v. Wards Cove Packing Co., Inc.,

810 F .2d 1477 (9th Cir. 1987) .............

Domingo v. New England Fish Co.,
727 F .2d 1429 (9th Cir. 1984) .............

Eisen v. Carlisle & Jacquelin,
417 U.S. 156 (1974) ........................

Harris v. Pan American World Airways, Inc.,
74 F.R.D. 24 (N.D. Cal. 1977) .............

Inda v. United Air Lines, Inc.,
565 F .2d 554 (9th Cir. 1977), cert, denied,
435 U.S. 1007 (1978) ......................

Ivy v . Boeing Co.,
20 FEP Cases 1240 (D. Kan. 1977) .........

38
Jones v. Bechtel,

788 F .2d 571 (9th Cir. 1986) .........

Kenna v. Pan Am, World Airways, Inc.,
17 FEP Cases 1445 (N.D. Cal. 1978) . .

Kraszewski v. State Farm Ins. Co.,
27 FEP Cases 27 (N.D. Cal. 1981) . . .

Kraszewski v. State Farm Ins. Co.,
38 FEP Cases 197 (N.D. Cal. 1985) . . .

O'Brien v. Sky Chiefs,
670 F .2d 864 (9th Cir. 1982) .........

Osmer v. The Aerospace Corp.,
30 FEP 204 (C.D. Ca. 1982) ...........

Roundtree v. Cincinnati Bell, Inc.,
22 FEP Cases 960 (S.D. Ohio 1979) . . .

Thornberry v. Delta Air Lines,
30 FEP Cases 520 (N.D. Cal. 1978) . . .

Watkins v. Scott Paper Co.,
530 F.2d 1159 (5th Cir.), cert, denied,
429 U.S. 861 (1976) . . . TT" . T “ .

Wofford v. Safeway Stores, Inc..
78 F.R.D. 460, 18 FEP Cases 1645
(N.D. Cal. 1978) ....................

. . . 51

. . . 50

32,35,41,44,49

. . . 48

. . . 47

. . . 52

. . . 38,50

. . . 50

. . . 47

. . . 41

- 1 x -

1
2

20
21

Other Authorities
Federal Rules of Civil Procedure

Rule 23(a) ...............
Rule 23(a)(1) .............
Rule 23(a)(3).............
Rule 23(a) ( 4 ) .............
Rule 23(b)(2) .............
Rule 23(d) ...............

1,32,41
49
41

35,41
1

51
42 U.S.C. § 1981 51

i i i

INTRODUCTION

Chevron's opposition to the certification of this
class action is singularly narrow in focus. It does not

seriously dispute the appropriateness of class treatment under

the numerosity and commonality requirements of Rule 23(a), for

it concedes that the Northern California Division maintains

uniform and centrally-controlled promotion, job assignment,

training and performance evaluation practices affecting a class

of more than 100 members. Nor does it contest the

appropriateness of class treatment under Rule 23(b); plaintiffs'

allegations of discrimination are generally applicable to the

class as a whole, thereby making classwide relief appropriate.
Fed. R. Civ. P. 23(b) (2) .

The heart of Chevron's Opposition to Plaintiffs'

Motion for Class Certification (hereinafter "Opposition") is the

stunning claim — if true — that eight of the nine plaintiffs

are so psychiatrically impaired" that not one of them can

satisfy the adequacy of representation and typicality

requirements of Rule 23(a). Thus, Chevron's opposition rises or

falls on the proposition that those plaintiffs suffer from such

severe psychiatric disorders that they are unfit to represent
the interests of an otherwise proper class.—^

^ Aside from that contention, Chevron concedes that all
eight of those plaintiffs are adequate class representatives
whose claims are typical of those of the class. As to the ninth
plaintiff, Ismael Gonzales, Chevron erroneously argues his inadequacy on other grounds.

1 Pis' Reply/Opp Class Cert

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Chevron tries to establish this allegedly high level of

psychiatric dysfunction with what can, at best, be called

selective editing of certain medical reports. Chevron has culled

the sentences and phrases quoted in its brief and in its

counsel's Summary of Medical/Psychiatric Record, see Chevron's

Appendix B, primarily from a computer generated report called the

Minnesota Multiphasic Personality Inventory (hereinafter "MMPI").

As explained infra at 33-34, the use of a few selected questions

and answers from the MMPI to convey the impression of a diagnosis

is grossly misleading and irresponsible. The MMPI report itself

states that "[n]o decision should be based solely upon the

contents of this report." Chevron's Appendix B, MMPI reports.

In addition, the few phrases pulled from the reports of the
plaintiffs' treating physician, Dr. Rashmikant K. Shah, do not

accurately reflect his medical conclusions about the plaintiffs.

Dr. Shah has in fact determined that the plaintiffs, who are

under his care, are entirely capable of functioning as class

representatives. Declaration of Rashmikant K. Shah (hereinafter

"Shah Declaration"). In his opinion, these plaintiffs suffer

only from job-related stress, which may express itself in the

form of depression, anger, or anxiety; they do not suffer from

psychiatric impairments of the kind suggested by Chevron. I d ^

2/
— Chevron also selectively quotes from the reports in

its Appendix B summary. For example, at page 3, Chevron quotes
Dr. Shah's April 14, 1987 report on Cornell Bert as stating
"Remains temporarily and partially disabled." In fact, the
sentence reads, "In summary, Mr. Cornell Bert remains temporary
and partially disabled but can continue to work without any
significant problems."

Moreover, Chevron excludes one report entirely (Flores) and
significant portions of others (Francies, Monarrez, and Thomas).

2 Pis' Reply/Opp Class Cert

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2

That is, none of the plaintiffs are deranged, delusional, out of

touch with reality, or lacking in basic cognitive skills.

Chevron's obfuscation of plaintiffs' psychiatric

condition, however, is not limited to the selective editing of

Dr. Shah's records. Chevron has also disingenuously failed to

inform the Court that the workers' compensation files of five of

the eight plaintiffs contain comprehensive reports submitted by

a team composed of a psychiatrist and psychologist selected and

retained by Chevron to examine and test plaintiffs' mental

condition. The reports all concern plaintiffs who are out of

work on temporary stress leave and are presumably most likely to

be impaired. However, the reports of these doctors uniformly

concur with Dr. Shah's conclusion that these plaintiffs suffer

from job-related stress, not from psychiatric disorders of the

type implied by Chevron. Indeed, in the opinion of Chevron's

medical team as well as plaintiffs' physician, the stress

plaintiffs suffer is directly traceable to Chevron's

discriminatory employment practices rather than to any

psychiatric disturbance, and would be relieved by the

elimination of these practices from the work place. For

example, as to plaintiff Francies, Chevron's psychiatrist found
that he "has only one impairment, that is that he cannot work
for the same supervisors who permitted harassment to take
place." See infra at 20. And as to plaintiff Barefield,
Chevron's psychiatrist found that he suffers not from a
psychiatric impairment, but from "an occupational problem . . .
that could be resolved by Chevron U.S.A. but not through
psychiatric treatment." See infra at 7 n.4. These medical

3 Pis' Reply/Opp Class Cert

1
2

reports, which are filed under seal, are set forth in
3 /Plaintiffs' Appendix.—

II
PLAINTIFFS' INDIVIDUAL CLAIMS

Chevron does not dispute that named plaintiffs'

individual discrimination claims -- also advanced on behalf of

blacks and Hispanics generally — concern issues of promotion,

job assignment, training and performance evaluation. The

individual claims, as Chevron concedes, were determined to be

valid by the Office of Contract Compliance Programs of the U.S.

Department of Labor. See Exhibit A to Declaration of Leon E.

Francies, Jr. in Opposition to Motion to Transfer, filed

July 21, 1986 (hereinafter "Francies Declaration Exhibit"), at

7-15. Nevertheless, Chevron attempts to show that plaintiffs

are unable — by virtue of psychiatric infirmity — to represent

the interests of the class. The only infirmity from which

plaintiffs suffer, however, is job stress caused by Chevron's

discriminatory employment practices; none of the plaintiffs has

any history of psychiatric problems. See Shah Declaration, 11 9.

Chevron's argument is both factually disingenuous and, as we

show infra, legally erroneous.

Plaintiffs will quote for each plaintiff pertinent
parts of Dr. Shah's reports and, where available, portions of
the reports prepared by Chevron's experts, Allen J. Enelow,

— Dr. Shah's reports that Chevron excluded from its
Appendix B are also included in Plaintiffs' Appendix.

4 Pis' Reply/Opp Class Cert

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2

M.D., a psychiatrist, and Arnold E. Herrera, Ph.D., a psycholo

gist. Although accurate, these quotations may not give the

complete picture contained in the entire report. Plaintiffs

therefore urge the Court to examine each of the reports in its

entirety.

A. Archie Barefield, Jr.

Plaintiff Barefield commenced employment with the

Northern California Division 20 years ago as a roughneck.

Barefield Declaration, \[ 2. In 1982, he became the first

minority employee to attain the position of operations

assistant. See Plaintiffs' Opening Memorandum, at 21 n.22.

Still an operations assistant when he filed his administrative

charge of discrimination in June 1985, Barefield was then the

second highest ranking minority employee in the Division. Id.

Barefield has been an exemplary Chevron employee,

highly rated in job knowledge and skill, and consistently

excellent in attendance. See discovery documents 016185-92.

Having worked as a foreman in relief, he was recommended for
immediate promotion to foreman in November 1983. See id. at

016183-84. Nevertheless, 15 nonminority employees were selected
to be 4A foremen in the years 1984 to 1985; 12 were junior to
Barefield. Id. at 016693. One white employee had as little as
two years of seniority. Id. In fact, from 1980 to 1985,
Barefield's promotion to operations assistant was the only
minority promotion out of the 95 promotions to salaried
positions (a broad category that also includes foreman and staff
jobs). See Plaintiffs' Opening Memorandum, at 20-21; discovery

5 Pis' Reply/Opp Class Cert

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2

document 020299. If he had been promoted, Barefield would have

been the first Northern California Division minority employee

ever promoted to the foreman position. See Plaintiffs' Opening
Memorandum, at 21 n.22.

In May 1985, Barefield learned that several white

employees, including a few that he had trained, had been

promoted to foreman ahead of him. Discovery document 0002. On

June 14, 1985, he filed an administrative charge on behalf of

himself and all others similarly situated. Id.

Upset by Chevron's refusal to promote him, Barefield

sought the assistance of a psychiatrist. He was referred by a

church acquaintance to Dr. Shah, a minority doctor in the

Bakersfield area. Plaintiffs' Appendix 5. Dr. Shah first

examined Barefield on July 24, 1985, and put him on a disability

leave for symptoms caused by job stress, a decision later

ratified by the psychiatrist retained by Chevron. Id_. at 9, 26.

Prior to seeing Dr. Shah, Barefield had never consulted a

psychiatrist or taken leave of any kind. Supplemental

Declaration of Archie Barefield, Jr. (hereinafter "Barefield

Suppl. Declaration"), K 2; Shah Declaration, 11 9; Plaintiffs'
Appendix 6, 11.

In his initial progress report, dated October 16,
1985, Dr. Shah wrote that Barefield felt angry and depressed
about being bypassed, but he noted no evidence of irrationality
or derangement. Chevron's Appendix B, Shah evaluation of Archie
Barefield. Subsequent reports, prepared by Chevron's medical
team in connection with Barefield's workers' compensation case,
paint a similar picture. In his July 1986 report, Chevron's

6 Pis' Reply/Opp Class Cert

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2

psychiatrist, Dr. Enelow, found that Barefield suffered from no

psychiatric disorder, but was "an honest and forthright man who

has very slight anxiety, anger and depression" as a result of

employment discrimination. Plaintiffs' Appendix 9.—/ Chevron's

psychologist, Dr. Herrera, having administered a battery of

psychological tests, reported that he found no evidence of a

dysfunctional personality disorder, and agreed that ” [t]he

situation [Barefield] describes suggests that he was the object

of discrimination." Plaintiffs' Appendix 20.

— Dr. Enelow's report states:

Archie Barefield describes himself as the object
of discrimination. His account would tend to give
some credence to this. He also describes himself as
depressed with impaired concentration.

Testing and evaluation at this time did not con
firm his concentration difficulty. One finds an hon
est and forthright man who has very slight anxiety,
anger, and depression. The comparison of testing from
that done in July 1985 shows improvement in his anxi
ety and in the impairment of concentration from July
1985 to February 1986. At that time depression was
still present, though reduced, and there was less
distress.

In short, there is little or no actual disability
on the basis of psychiatric symptoms. His attitude
towards Chevron after having been passed over for pro
motion is, however, another thing. Because of his
attitude, feeling hurt, rejected, and betrayed, it
does not appear that he is willing to work for
Chevron. It is also likely that if he were to return
to work under these circumstances, his performance
would be impaired by virtue of his anger and disap
pointment. This is not a psychiatric impairment, how
ever. This might be considered to be more of an occu
pational problem and one that could be resolved by
Chevron USA but not through psychiatric treatment.

Appendix 9.

7 Pis' Reply/Opp Class Cert

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21
22

In his March 1987 report, Dr. Enelow found Barefield
to be angrier and more disappointed about how Chevron had

treated him. 173. at 26. The Chevron psychiatrist concluded

that Barefield could return to work if steps were taken to

prevent discrimination and that Barefield's disability would be

reduced by "a resolution of the situation at the Chevron

installations in and around Bakersfield."—/ Thus, Chevron's

claim that Barefield is unable to interact with management—^ is

— The report states:

In my opinion . . . if steps were taken to prevent any
such behavior as he experienced in the past and if he
were given his promotion to foreman that he believes
that he deserves, he would be able to return to work.
It is my view that a resolution of the situation at
the Chevron installations in and around Bakersfield
would reduce the degree of disability considerably and
would be therapeutic in terms [of] producing a
recovery from his present adjustment disorder.

Plaintiffs' Appendix 26-27.
6 /
— There is no reason to believe that Barefield cannot

give open-court testimony in the presence of Chevron management.
See Barefield Suppl. Declaration, 1[ 5; Shah Declaration, 11 14.
Plaintiff Barefield's deposition was taken for two days. Because
Chevron counsel wished to have present a representative from
management, counsel agreed that Barefield would list beforehand
the managers whose presence would affect his ability to testify.
Barefield listed eight individuals whom he believed were directly
involved in his individual discrimination case. Barefield
Deposition, at 4. Chevron counsel, however, made no effort to
have any other management personnel present at the deposition.

Midway through the second day, Chevron counsel attempted to
provoke a cancellation of the deposition by insisting on the
presence of a listed manager. Plaintiffs' counsel declined the
invitation, and proposed going to the magistrate. Ic[. at 218-21.
Chevron counsel eventually declined to seek a ruling from the
magistrate who, pursuant to Rule 26(c)(5) (court may order "that
discovery be conducted with no one present except persons
designated by the court"), had already excluded from the
deposition of plaintiff Francies a manager directly involved in
the alleged discriminatory conduct. Id. at 219.

8 Pis' Reply/Opp Class Cert

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belied by the medical opinion of Chevron's own psychiatrist, in
which Dr. Shah concurs. See Shah declaration, 11 7. Plaintiff

Barefield, a career Chevron employee, intends to return to work

as soon as his psychiatrist and Chevron's psychiatrist permit.
See Barefield Suppl. Declaration, 1[ 3.

B . Cornell Bert

Plaintiff Bert has been employed by the Northern

California Division for 20 years. Since 1967, he has advanced

from an entry-level position to head operator. Amended Bert

Declaration, 11 2. When Eert was promoted to head operator in

April 1986, three months after filing an administrative charge

of discrimination, he became the first black head operator in

the Northern California Division. See Plaintiffs' Opening
7 /Memorandum, at 21 n.22.—• Bert complains about denial of

promotions to operations assistant and foreman. Amended Bert
Declaration, 11 6.

Bert is considered by management to be "a consistently

top performer" and "an outstanding credit to the company."

Discovery document 017559. A December 1985 performance

evaluation found that he was an exemplary and highly productive

employee who "has the ability to lead others and gets results

through teamwork with little effort." 16. He has worked in

various head operator relief positions since 1979, and was

- An Hispanic employee was made a head operator in 1985.
See Plaintiffs' Opening Memorandum, at 20. Prior to that
selection, the 1980-85 statistical data show no minority head
operators. Id.

9 Pis' Reply/Opp Class Cert

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assigned to head operator relief for half of the 1984-85 period.
See id. at 017559, 017561-63. Contemporaneous with his glowing

December 1985 evaluation, Bert was bypassed for promotion to
three head operator positions. In fact, none of 35 promotions
to head and lead positions between 1980 and the filing of

plaintiffs' administrative charges went to minority employees.
Plaintiffs' Opening Memorandum, at 21 n.22. Plaintiff Bert,

whose seniority is comparable to that of plaintiff Barefield,

has also been bypassed by less qualified and/or junior white

employees for numerous salaried positions, none of which went to
minority employees between 1980 and 1985 other than the 1982

promotion of Barefield to operations assistant, see supra at 5.

After discussing the matter with management, Bert
filed an administrative charge of discrimination in January

1986. Discovery document 0004. Three months later, he received

a promotion to head operator when one of the white employees
promoted earlier retired.

Bert continues to work, and is not on any stress
leave. Bert did, however, consult Dr. Shah in April 1986 and
has been seeing him for anger and depression because of alleged
discrimination. See Chevron's Appendix B, Shah evaluation of
Cornell Bert, at 1. Bert told Dr. Shah that he "perceives his
work place as hostile, but feels that he has control and
concentration to continue with his job work." Id. Dr. Shah
concluded that "Bert remains temporarily and potentially
disabled but can continue to work without any significant
problems." Id. it is Dr. Shah's opinion that Bert is fully
able to function as a class representative in the discovery,

10 Pis' Reply/Opp Class Cert

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trial preparation, settlement negotiations, and trial of the
case. See Shah Declaration, 11 14. In Dr. Shah's medical

opinion, Bert is not psychiatrically impaired. Ic3. , 11 8.—/

Bert's deposition was taken for three days in

connection with this litigation. Chevron's counsel was assisted

at the deposition by Bert's present foreman, who attended all

three days. See Bert Deposition, at 2.—/ Bert can testify in

open court before any and all persons at the trial of this

action. See Shah Declaration, II 14; Supplemental Declaration of

Cornell Bert (hereinafter "Bert Suppl. Declaration"), 1[ 4.

C . Johnny Coffee

Plaintiff Coffee commenced employment with Chevron 23

years ago; he has spent the last 11 years in the Northern Cali

fornia Division, the last ten as an operator B. Coffee started

with Chevron's marketing division in 1964, and worked his way up

to the positions of assistant manager and station manager at

various Chevron gas stations. See discovery document 16099.

That supervisory experience was never utilized by Northern

California Division management, although the prior experience of

white employees is often taken into account for assignments and

promotions. E .g . , Francies Declaration Exhibit, at 11.

8 /— Chevron's medical team has not examined Bert or
reviewed his medical files.

9 /— Pursuant to agreement of counsel, Bert designated
several managers whom he believed were directly involved in his
discrimination claims and did not wish to have present at the
deposition. Bert Deposition, at 11-15. Chevron raised no
objection.

11 Pis' Reply/Opp Class Cert

1
2

5
6

21
22

In one of his initial encounters with Division

management in 1976, Coffee was told that he should not take

offense at being called racially derogatory names by fellow

employees. Coffee Deposition, at 78-79. And on numerous

occasions, in the course of performing his job, Coffee has

witnessed racially derogatory graffiti.— ^

During his eleven-year tenure in the Northern

California Division, Coffee has performed relief work as an

operator A and as a head operator on numerous occasions, see id.

at 214, 217-18; and yet, he has not been promoted above the

level of an operator B, the lowest position above entry-level
trainee.

In September 1981, Mr. Coffee suffered a ruptured

pancreatic pseudocyst, and went out on extended medical

disability. He returned to work in February 1984. Shortly

after his return, Mr. Coffee was characterized as "a good worker

. . . who follows instructions and has a good attitude toward

[his] job." Chevron's assertion to the contrary, see Opposition,

at 21, he performed all of the work he was asked to do, and did

not refuse any assignment. Supplemental Declaration of Johnny

Coffee (hereinafter "Coffee Suppl. Declaration"), H 2. Fifteen

— At deposition, Mr. Coffee described four examples of
such graffiti in the Bakersfield Area; the first, written on
the side of a building, read "Hey, Blackie, it's not your
world"; the second, drawn on a four by five foot pasteboard,
portrayed "a big old coon . . dark in color, black in fact,"
accompanied by the statement "Go home"; the third, etched on a
three by three foot board, read "Nigger, don't hang around"; and
the fourth, drawn on a rock, included the image of a man strung
up by his neck, and the statement "This is you, nigger." Coffee
Deposition, at 426-33, 454-55.

12 Pis' Reply/Opp Class Cert

1
2

5
6

21
22

f 8

nonminority employees were promoted to operator A from 1984

through 1985; all had less seniority than did Coffee in the

Northern California Division. Discovery document 016690. In

July 1985, Mr. Coffee filed an administrative charge of

discrimination, complaining of denial of promotions and job

assignments to himself and all similarly situated employees

Coffee did not see Dr. Shah for job stress until May

1986. Chevron's Appendix B, Shah evaluation of Johnny Coffee,

at 1. Although he continues to see Dr. Shah while continuing

his employment, he is not presently out of work on a stress-

related disability leave. See Coffee Suppl. Declaration, 11 4.

Prior to seeing Dr. Shah, Coffee had never sought psychiatric

assistance. Shah Declaration, K 3. Of his first consultation

with Coffee, Dr. Shah wrote: "The patient reports that most of

his aggravation has been caused by stress at work, especially

long years of discrimination against him." Chevron's
12/Appendix B, Shah evaluation of Johnny Coffee, at 3.— ' Coffee

is fully able to serve as a class representative from a medical
13/perspective. Shah Declaration, K 13.— '

— ^ Only subsequent to that filing did Chevron make an
"offer" of promotion, predicated upon Mr. Coffee's ability to
demonstrate proficiency in skills he had mastered long ago and
had not used in his assignments in years. Believing that he
should have been promoted already and that Chevron's "offer" was
disingenuous, Mr. Coffee declined. See Francies Declaration
Exhibit, at 8.

12/— Chevron's medical team has made no examination of
Mr. Coffee.

13 /— Recently, Coffee was injured in an industrial
accident. His current disability is not stress-related, and he
is scheduled to return to work on June 15, 1987. See Coffee
Suppl. Declaration, 1[ 4.

13 Pis' Reply/Opp Class Cert

1
2

5
6

Chevron has thus far deposed Coffee for five days.

One of his current foremen was in attendance at his deposition.

See Coffee Deposition, at 186. In response to the inquiries of

Chevron counsel, Coffee testified that he felt he could not be

deposed in the presence of several direct managers.— ^ Coffee

could testify at the trial of this action before any and all

persons. See Shah Declaration, K 14; Coffee Suppl. Declaration,

11 6 .

14/— Chevron's assertion that Coffee would permit only
three specified members of management to attend his deposition,
Defendant's Opp., at 21 n.19, misstates the record:

Q. (by Mr. Cutler) This morning I informed Mr. Betz
that Mr. Coffee is, indeed, willing to testify
before a number of supervisors from Kern River
and those would include . . . Jerry Kelly [1] --

A. Yes, Jerry Kelly •
Q. (by Mr. Cutler) Joe Hankins [2] --
A. Yes, Joe Hankins •
Q. (by Mr. Cutler) And Jeff Nakashima [3].
A. Jeff, yes, Jeff. * * *
Q. (by Mr. Betz) Would you object to Jim

Pierce [4], Jim Patrick [5] , or Dave Farr [ 6] , or
Keith Rattie [7]? These are area superintendents
from the other locations. Do you object to them
[sic] sitting in?

A . No.
Coffee Deposition, at 11-12, 14. In addition, Mr. Coffee stated
that his objection to the presence of management personnel from
Cymric and Taft extended only to ” [t]he supervisors that I've
had dealings with . . . ." Id. at 14.

14 Pis' Reply/Opp Class Cert

1
2

11
12

21
22

D . Pete Flores

Plaintiff Flores has been a Northern California

Division employee since 1974, during which time he has performed

a variety of jobs in the Taft, Cymric and Bakersfield Areas,

both in operations and in Field Services. Prior to commencing

work at Chevron, he worked as a warehouse supervisor and sales

manager for retail hardware companies. See Flores Deposition,
at 204-05, 229-30.

Flores is presently a mechanic A in the Bakersfield

Area. He has failed to receive a promotion to any position

above the level of mechanic A, including the positions of lead,

head, operations assistant and technician engineering assistant.

As recently as October 1986, as well as on previous occasions,

he has been denied relief work and/or relief pay as a temporary

lead mechanic. See, e,g., Flores Deposition, at 141.— ^ During

his tenure at Chevron, co-workers have made him a target of

racial slurs and other mistreatment. See Plaintiffs' Appendix

41, 42. In 1984, when Flores questioned the factual accuracy of

several statements on his performance evaluation, the

responsible supervisor responded that he "couldn't think of

anything else to write." See id. at 42. Only after Flores had

sought the assistance of his union and had twice asked the

supervisor to document his statements was the evaluation
eventually changed. Id.

— ^ The Department of Labor also noted questionable
disparities in training opportunities and evaluation marks
between Flores and non-minority employees. See Francies
Declaration Exhibit, at 8.

15 Pis' Reply/Opp Class Cert

1
2

21
22

In June 1984, Flores became aware that several

operations assistant positions had been filled by employees who

were less senior than he. The same day he brought his concerns

to the attention of the superintendent, he was assigned to do

menial work at a less desirable work location. See id. at 54.

In the 1984-85 period, 19 nonwhite employees received promotions

to the OA position, see discovery document 016691; 14 were

junior to Flores in length of service. Id.

In August 1985, shortly after he filed his

administrative charge of discrimination, Flores began to consult

Dr. Shah about the anger and anxiety he felt over his plight at

Chevron. In his summary of the initial sessions, Dr. Shah wrote

of Flores that he suffered from the stress, but that

his thought patterns were logical and did not
reveal any loosening of associations, tangen-
tiality or circumstantiality. There was no
evidence of any delusional thinking or any
hallucinations. His affect and mood were
moderately depressed. He was oriented to time
and place. . . . His judgment is good and
insight is fair.

Plaintiffs' Appendix 37.— ^ Pursuant to Dr. Shah's recommen

dation, Flores stayed out of work for the last four months of

1985. He returned to work starting in early January 1986, but

ten months later, he was again denied relief pay as a lead

mechanic. See Flores Deposition, at 141. Flores then commenced

— '̂ The snippets of Dr. Shah's reports quoted to this
Court by Chevron in its Appendix B, are misleadingly incomplete
and acontextual. Chevron included only a one-page "status and
progress report," dated November 12, 1985, but failed to provide
Dr. Shah's accompanying five-page "psychiatric consultation"
report of the same date. This report is made part of
Plaintiffs' Appendix.

16 Pis' Reply/Opp Class Cert

1
2

21
22

another leave from Chevron on the advice of his doctor. Id.
at 19-20.

Flores was examined by Chevron's medical team about

eight months after Dr. Shah's reports. Dr. Enelow concludes his

report:

I see no reason to doubt Mr. Flores' story
about the treatment that he received at Chevron.
I believe that his symptoms are a response to
the discrimination that he has experienced.

Plaintiffs' Appendix 60. Dr. Herrera agreed. L3. at 48

("Assuming his self-report is accurate, he does appear to have
• 17/been the object of racial discrimination").— '

Flores has been deposed by Chevron for five days thus

far. He voiced no objection to Chevron's having any of a number

of supervisors (including his current supervisor) in attendance,

see Flores Deposition, at 12, but Chevron opted not to have a

member of management present. Flores could testify at trial

before any and all persons. See Supplemental Declaration of
Pete Flores (hereinafter "Flores Suppl. Declaration"), 11 5; Shah

Declaration, 11 14. Flores intends to return to work as soon as

he is permitted to do so. Flores Suppl. Declaration, 11 3.

17/— Chevron's psychiatrist found "no evidence of cognitive
impairment or thought disorder," Plaintiffs' Appendix 57, an
opinion in which Chevron's psychologist concurred. See id.
at 46 ("[Flores'] cognition does not appear to be impaired by
emotional factors . . . . [His] constructional abilities appear
to be intact . . . . " ) . Dr. Herrera found that Flores did not
suffer from paranoia.

His paranoid thinking, in my opinion, is in response
to his feeling preferentially treated and racially
discriminated against. Given his situation, a
paranoid personality disorder cannot be diagnosed at
this time.

Id. at 48.

17 Pis' Reply/Opp Class Cert

1 E. Leon E. Francies, Jr.

14
15

Plaintiff Francies was hired in February 1981 as a

maintenance electrician. Francies Declaration Exhibit, at 10.

He had four years of electrical contracting experience when

hired, and is the only Northern California Division electrician

with a state electrical contractors license. Id. He was only

the second black employee ever to work in the Northern Cali

fornia Division as an electrician and was the sole minority

electrician for several years. Supplemental Declaration of

Leon E. Francies, Jr. (hereinafter "Francies Suppl. Declara

tion"), 1( 2. Francies complains of continuing denial of

promotions, training, job assignments and unfair performance

evaluations. Francies Declaration, 1( 5. The thrust of these

claims is that less experienced and/or less qualified white

employees with less seniority were preferred over Francies for
1G
17

numerous employment opportunities. Francies Declaration Exhi-
18/bit, at 10.— Francies also asserts that he was subjected to

extensive racial harassment and racial slurs.

18/ Francies also was given the hazardous assignment
(without adequate protective equipment and clothing) of charging
PCB transformers; it was an assignment that the white employees
declined to perform. See Francies Deposition, at 75-81.

19/— At his deposition, Francies described the following
incidents involving white supervisors and/or employees: being
physically threatened and told "I am not your nigger," Francies
Deposition, at 151-52; being grabbed and told by several white
employees that they "were going to cut my nuts," id. at 156;
being told racially derogatory jokes about "a black man's lips"
and "how do you babysit black kids," id. at 158-59; being told
by a white employee in front of the entire electrical shop, "I
hate all niggers. What I'd like to do is get a knife and get a
nigger and lay him on the ground, take a knife and split his
back wide open and pour salt on him and watch him quiver," after
a professional heavyweight fight in which a black fighter beat a

[Cont'd]
CL:73 #8 18 Pis' Reply/Opp Class Cert

Francies was rated by management as a hard-working,
highly productive, and very safety-conscious employee through

1984. Discovery documents 015788, 015791. After he complained,

his performance evaluations plummeted. See id. at 015773.— /

After vainly protesting to his supervisor and through

the union, Francies filed an administrative charge of discrimi

nation in April 1985. See id. at 1953-54. The charge was filed

on behalf of himself and all others similarly situated. Id.

19/— [Cont'd]
white fighter, id. at 221-22; being called "raven" while he was
perched on a powerline pole, _id. at 229; being called "nigger,"
and hearing other black employees called that, id. at 248, 252,
257; being told by the head electrician to "go to the barbershop
and pick up and bring the hair that black people have back to
him so he can clean his mags on his new car," _id. at 257; being
told by the head electrician to "colored rig it" or "nigger rig
it" in referring to a rigging job, id_. ; hearing Hispanic
employees disparaged as "stupid Mexicans" and "greasers," id.
at 263; and being told by the head electrician that he was going
to "get my sheet out of the cleaners tonight" or "get my sheet
pressed," ic[. at 290.

In addition, Francies saw a sign stating "I hate all
niggers, Mexicans and Jews," which also depicted "an African
with real big lips, with a bone in his nose or in his hair," id.
at 289, and a charred cross, _id. at 289-90. The head electri~
cian and other employees also told Francies of a sign that used
to be near Chevron property which said "don't let the sun set on
your ass, niggers." Id. at 165-67.

20/— Chevron recounts an accident that occurred in August
1984 as evidence that Francies was a poor employee. However,
Francies was characterized in his 1984 performance evaluation,
several months after the accident, as "a good performer" who is
"conscientious and works on improving himself." Discovery
document 015789. Moreover, management discussed the accident in
his evaluation and concluded that Francies' conduct was "very unlike him."

[Francies] usually follows safe work practices.
Constantly remindes [sic] others to work safely. He
had one unsafe incedent [sic] where he restored power
not knowing it was safe (very unlike him).

Id. at 015649.

19 Pis' Reply/Opp Class Cert

1
2

6
7

Francies saw Dr. Shah on August 21, 1985, and Dr. Shah

put him on a disability leave for four months. Plaintiffs'

Appendix 73. Francies returned to work on December 16, 1985

and, although he was an electrician A, he was assigned to sweep

floors, wash windows, empty trash, and perform other janitorial

chores. D3. After a month of such assignments, Dr. Shah put
Francies back on disability leave. Id.

After conducting a comprehensive examination of

Francies and a review of his medical records in February 1986,

Chevron's psychologist, Dr. Herrera, found that Francies' cog

nition was not impaired and that he had adequate concentration.

Id. at 83. Both Dr. Herrera and Chevron's psychiatrist,

Dr. Enelow, found Francies to be "clearly" honest and

forthright. 1(3. at 71, 83. Chevron's psychiatrist found no

psychiatric impairment, but concluded that "Mr. Francies has

obviously been exposed to racial slurs." Id. at 71.

I would suggest that Mr. Francies has only one
impairment, that is that he cannot work for
the same supervisors who permitted harassment
to take place and with the same individuals
who have made racist remarks, including
insulting and demeaning remarks, or who
attempted to frighten him with the ill-
conceived snake incident.

It may not be possible for Chevron, regardless
of its corporate anti-discrimination policy,
to be able to handle the deeply ingrained
racism of the oil field workers in the area
around Taft and Oildale, as well as other
areas in which Chevron has its operations.
This may mean that, no matter what the company
policy is, the ability to translate that
policy into supervisorial behavior and strict
monitoring of daily activities may be more
than can be accomplished. If that is the
case, some help should be given to
Mr. Francies by reassigning him to an area
where he might encounter less overt racism.

20 Pis' Reply/Opp Class Cert

Given such an assignment, there is no reason
that Mr. Francies could not perform all of the
duties that are part of his job description.

Id. at 72. In his 1987 report, Chevron's psychiatrist found

Francies angrier,— ^ but continued to find that "Mr. Francies

would be able to return to work if it were possible to produce

an atmosphere for him in which he was treated on an equal level

with any other individual regardless of skin color, race or

religion." _Id_. at 89.

Francies' deposition has been taken for six days.

Magistrate Woelflen ordered that Francies' immediate supervisor,

who was directly involved in the alleged discrimination, could

not be present at the deposition pursuant to Rule 26(c)(5), but

that other managers who were not directly involved could attend.

See Barefield Deposition, at 219. Francies subsequently listed

several managers who were directly involved in his case, though

Chevron chose not to have any manager attend the deposition.

There is no reason to believe that Francies could not testify at

trial in the presence of any representative of Chevron manage

ment. See Francies Suppl. Declaration, II 6; Shah Declaration,

',1 14.

21/— ' Dr. Enelow found that:

He is more angry than he was a year ago as he feels
that his words have been twisted and that dishonest
and distorted accounts have been given of events that
occurred which he reported accurately and honestly.
There was no evidence of psychomotor retardation.
There was no evidence of cognitive impairment.
Mr. Francies is somewhat literal and did not clearly
understand all of the items on the MMPI leading to an
artificially elevated profile. There was no evidence
of psychotic thought disorder.

Appendix 88.

CL:73 #8 21 Pis' Reply/Opp Class Cert

Plaintiff Francies intends to return to work as soon
as his psychiatrist and Chevron's psychiatrist permit. See

Francies Suppl. Declaration, 11 4.

F . Salvador Monarrez

Plaintiff Monarrez is a ten-year employee of the

Northern California Division. He began his career with Chevron

in 1977 as a summer and part-time employee while he was attend

ing Taft College. Monarrez Deposition, at 79. In 1978, he

commenced full-time employment as a mechanic trainee in Shop and

Field Services. He was assigned almost exclusively to cleaning

tasks that were typically performed by outside contractors, was

given little training, and was called "wetback" by his immediate

supervisor. See id. at 123-24, 129-30. Monarrez requested a

transfer to the Bakersfield Area. See id. at 136-37. The
request was denied.

In 1980, Monarrez was enrolled in a crafts training

program pursuant to a company directive that such training was a

prerequisite for promotion to the position of mechanic A. See

id. at 148-51, 155. Two months later, he was removed from the

program, ostensibly because the training was unrelated to his

assignment. See id. at 156; Opposition, at 24.— ^ in the

ensuing three years, many less experienced white employees

received promotions to the position of mechanic A upon their

completion of the training program. Monarrez was not promoted,

22/— ■' The only other mechanic whose training was thus
interrupted was a black employee. See Francies Declaration
Exhibit, at 12.

22 Pis' Reply/Opp Class Cert

although his work performance was highly rated. See discovery

documents 015106-09. More generally, black and Hispanic

employees received only 11% of the 88 promotions to maintenance
positions from 1980 through 1984. See Plaintiffs' Opening

Memorandum, at 20. In response to inquiries about his

situation, Monarrez was told in late 1983 that he could not

qualify for promotion to mechanic A without completing the

training program from which he had been removed. See Monarrez
2 3/Deposition, at 237.— Monarrez was promoted only after re

entering the training program, three years behind schedule.

After he became a mechanic A, Monarrez was denied

opportunities to do relief work as a lead mechanic, id. at 304,

386, and less qualified employees received promotions to more

responsible positions. See discovery document 0067. Moreover,

he was still called a "wetback." Monarrez Deposition, at

306-307.— / Accordingly, Monarrez filed an administrative

23/ The notion that the training program had suddenly
become necessary, or even relevant, is belied by Chevron's own
Human Resources Area Manager. In a declaration submitted in
opposition to this motion, he states that "[t]he Craft training
had̂ and has no curriculum relating to Mr. Monarrez’ pump shop
duties." Smith Declaration, 11 8 (emphasis added). Neverthe
less, Mr. Monarrez was not promoted until he agreed to complete
the training program.

24/ Mr. Monarrez also witnessed and reported to management
an incident of racial harassment involving a black worker named Jim Holman:

I was working with a fellow employee which happens to
be a Black contractor, and we were constructing a
guard-rail around a pumping unit. All of a sudden, [a
white employee] walked by our airea and called Jim a
"baboon." That was not enough so he came back and
said, "Look at that 'baboon' with his teeth flexing,"
while people went by. How long can these tactics qo on?

Discovery document 015149.
23 Pis' Reply/Opp Class Cert

1
2

charge of discrimination on June 26, 1985, complaining about

denial of promotions and training to "the class of Black and

Hispanic employees." Discovery documents 0067-68.

Monarrez first saw Dr. Shah in October 1985. Dr. Shah

advised him not to continue to work in such a discriminatory

environment, and put him on a stress leave on October 21,
25/1985---•' Monarrez had never been treated by a psychiatrist

before seeing Dr. Shah. See Supplemental Declaration of

Salvador Monarrez (hereinafter "Monarrez Declaration"), U 2.

Chevron's psychiatrist found that Monarrez was "a very

angry man who had clearly been subjected to racial slurs and

discrimination," Plaintiffs' Appendix 113, but found "no evi

dence of cognitive impairment or thought disorder." Id. at 111.

He further believed there to be "nothing about Mr. Monarrez'[]

account, his presentation of himself, or his psychological test

findings that would cast doubt upon his credibility." Id. at

113. According to Chevron's medical team and Dr. Shah, insofar

as Monarrez feels anger and anxiety — particularly toward

Chevron management — those feelings are tied directly to the
discrimination he has suffered on the job.— ^

25/— Chevron's psychiatrist and psychologist have both
ratified Dr. Shah's recommendation that Monarrez leave work
because of stress. Plaintiffs' Appendix 114, 125.

2 6/— / Monarrez has testified:
Q. What do you think it would take for you to feel

otherwise about management?
A. I would have never felt this way if I was treated fair.

Monarrez Deposition, at 116. Indeed, Monarrez has left open the
[Cont'd]

CL:73#8 24 Pis' Reply/Opp Class Cert

Plaintiff Monarrez is a career employee of the

Northern California Division. He intends to return to work as

soon as his psychiatrist and Chevron's psychiatrist permit.— /
See Monarrez Suppl. Declaration, 1[ 3.

G . Eulas Thomas

Plaintiff Thomas came to Chevron in March 1982, having

previously been employed as an oil refinery maintenance mechanic

and a pipeline welder's assistant. See Thomas Deposition, at

237-39, 248. He had also served in the United States Air Force

for eight years, and had earned an Associate of Arts Degree from

Bakersfield College. See discovery document 1353.

During his tenure at Chevron, Thomas has ably per

formed relief work as both an operator A and as a head operator.

— / [Cont'd]
Monarrez Deposition, at 116. Indeed, Monarrez has left open the
possibility that his feelings toward management will change, if
the problems he has encountered are resolved:

Q. Well, at this point in time what can be done [to
change your feelings about management]?

A. There is a lot of things that can be done.

Q. Is there anything that can happen that will ever
change your feeling about management?

A. Down the road maybe. I can't tell the future.
Id., at 116.

27/— Chevron's psychiatrist found that " [w]ith the proper
reassignment and appropriate supervisory behavior, Monarrez
should be able to return to work for Chevron without
impairment." Plaintiffs' Appendix 114. And according to
Dr. Herrera, Monarrez himself believes he can return to work for Chevron. Id. at 120.

25 Pis' Reply/Opp Class Cert

6
»-T/

20
21

See Thomas Deposition, at 43.2$/ Yet he has remained an oper
ator B, while those less qualified than he have received

promotions to higher positions. See, e.g., id. at 37-38.

Indeed, Mr. Thomas was responsible for "breaking in" at least
one such promotion recipient. Id.

Thomas has never received any relief assignments as an

operations assistant or foreman. Supplemental Declaration of

Eulas Thomas (hereinafter "Thomas Suppl. Declaration"), \\ 2. in

fact, only three of 83 relief assignments to such salaried posi

tions went to minority employees in 1984-86. See Plaintiffs'

Opening Memorandum, at 21 n.21. Moreover, on a number of

occasions, less experienced white employees have been assigned

to do operator A relief work while Thomas was given lower

paying, operator B jobs. See Thomas Deposition, at 214. When

Thomas requested that he be considered for a craft position, his

supervisor assured him that there would soon be such an

opportunity for him in the Bakersfield Area. Id. at 72-74.

Several months later, Thomas was asked by another supervisor

whether he would be willing to accept a craft position in the

Taft or Cymric Areas. Thomas responded that he needed some time

to consider the question, but was told that he had to provide an
answer right then and there. I d . , at 76. He declined the

"offer" and was never again given an opportunity for a crafts

28/ While Mr. Thomas' performance evaluations were
generally very good, Chevron is nevertheless somewhat misleading
in suggesting that he was satisfied with all of them.
Opposition, at 25. Mr. Thomas testified that on at least one
occasion, he felt he should have received better marks. See Thomas Deposition, at 266. ---

26 Pis' Reply/Opp Class Cert

position. Thomas filed his administrative charge of

discrimination in March 1986. See discovery document 0122.

On January 1, 1986, Thomas was performing his job

duties when he was attacked and beaten by two white non

employees. As a result, he suffered serious injuries to his

back, ankle and mouth, and he went out on disability. He first

visited Dr. Shah a week later, and the snippets of Dr. Shah's

evaluation report quoted by Chevron in its Appendix B were

written on the basis of consultations that took place within two

weeks of that traumatic incident. Further, Chevron neglects to

mention Dr. Shah's opinion that, even then, "[Thomas] was

oriented to time, place and person [; h]is memory for recent and

remote events seemed good [;] . . . [and h]is judgment [also]

seemed good." Plaintiffs' Appendix 130. Dr. Shah also per

ceived Mr. Thomas to be "a very reliable informant." Id.

at 128. At this time, Thomas is continuing to receive medical

treatment for his back. Id. at 135. He plans to return to work

at Chevron as soon as his physical condition permits and

Dr. Shah and Chevron's doctor consent. Thomas Suppl.
Declaration, 1! 4 .— ^

Thomas' deposition was taken in the presence of a
representative from Chevron management. See Thomas Deposition,
at 2, 18, 182. Thomas objected to the presence of nine other
individuals whom he believes were responsible for his failure to

29/
Thomas.

Chevron's medical team has made no examination of

27 Pis' Reply/Opp Class Cert

1
1
i :

1 :
i-

i :

i f

25
21
25
2G

receive promotions and training.— / Thomas and his physician

both agree that he could testify before anyone in open court..

See Thomas Suppl. Declaration, 1| 6; Shah Declaration, 11 14.

H . DeMelvin Williams

Plaintiff Williams has been a Chevron employee since
October 20, 1980. While the average length of service for a

. . inon-minority employee promoted to the position of an operator A

is only 38 months, see Plaintiffs' Opening Memorandum at 21 n.2, j
Williams has not been promoted above the level of operator B.— /

In 1984-85, 15 nonminority employees were promoted to opera

tor A; all but two were junior to Williams in seniority. Disco- i

very document 016990. During his tenure with the company,

3 0/— As to each of those individuals, M r . Thomas believed
that he would "just get angry and upset and . . . wouldn't be
able to concentrate and give . . . answers to [the best of his]
ability." Thomas Deposition, at 20-21; see id. at 19, 27.
Regarding his ability to concentrate, he and~Chevron counsel
also engaged in the following colloquy:

Q. Were you unable to concentrate when you had [a
previous] discussion with him?

A. It was some things I probably would have said a
lot better if I hadn't have been angry, yes.

Id. at 85.
31/— Chevron notes a problem Mr. Williams had with a

boiler, see Opposition, at 27, without mentioning the fact that
the equipment on the boiler was defective. See Williams
Deposition (Vol. I), at 280-81.

28 Pis' Reply/Opp Class Cert

Williams has been subjected to racially derogatory slurs and
• 32/insults.— He has also suffered from a lack of hands-on training
in oilfield string work.— / williams filed an administrative

charge of discrimination in June 1985, complaining about denial

of promotions and training, and a hostile and offensive work
environment. See discovery document 1955.

Williams commenced his current leave in March 1986. He
began seeing Dr. Shah in September 1985, after being informed

that his oilfield string experience was inadequate to qualify him

for a promotion to operator A. See Chevron's Appendix B, Shah

evaluation (November 1985) of De Melvin Williams, at 1. Dr. Shah

found that Williams suffers from job stress engendered by on-the-
job discrimination. Shah Declaration, 6. Chevron's

psychiatrist, Dr. Enelow, found that Williams was angry about

"some of the racial slurs and experiences of discrimination due

to racism that he was experiencing working in the Taft division
of Chevron." Plaintiffs' Appendix 155. Dr. Shah thought

Williams depressed and anxious but noted "no evidence of

32/
— 0ne Williams' supervisors has called .him a

"blackhoe" operator (rather than the proper term, "backhoe"
operator), and has told racially demeaning jokes in his pre
sence. See Williams Deposition (Vol. I), at 178-79, 181. And
in 1982, Williams' foreman asked him to fetch something and, in
the presence of other employees, shouted, "[R]un boy, it's in
your blood." id. (Vol. II), at 274.

33/ T_ insofar as Chevron suggests that Williams was
responsible for his own lack of training, it is important to
note that it was not until January 1985 that Williams' doctor
wrote to Chevron suggesting that he temporarily should be given
a position indoors. See Williams Deposition (Vol. IV), at 179
and at Exhibit 25 thereto. Chevron admits that the amount of
oil string experience then possessed by Williams was deficient
even after four years of uninterrupted employment — i.e., a
year more than the average length of service of a non-minority
promotee to the position of operator A.

29 Pis' Reply/Opp Class Cert

20
21

loosening of associations or other thought aberrations," and

described Williams' judgment as "good." See Chevron's

Appendix B, Shah evaluation of De Melvin Williams, at 4.

Chevron's psychologist reported that the testing administered by

Dr. Shah did not confirm a diagnosis of "major depression"

(cited to the Court by Chevron in its Appendix B summary, at 5) .

See Plaintiffs' Appendix 143. He also described Williams as a

"forthright individual" whose "cognition [wa]s not impaired due

either to emotional or neurological factors." Id.

Mr. Williams plans to return to work at Chevron as

soon as his doctors and Chevron's permit. Williams Suppl.
Declaration, 11 3.

I. Ismael Gonzales

Plaintiff Gonzales has been employed by Chevron's

Northern California Division for more than 12 years. Gonzales

Declaration, 11 1. Since 1974, he has worked in the Taft,

Cymric, and Bakersfield Areas. Id., II 3. Still an operator A,

Gonzales complains of having been denied promotions, job

assignments, and fair performance evaluations. I<3. , 1| 4.

Gonzales has yet to receive a relief assignment as an

operations assistant or a foreman. See Supplemental Declaration

of Ismael Gonzales ("hereinafter "Gonzales Suppl. Declaration") ,

11 2. And though he has ably performed relief work as a head

operator, he has been bypassed for promotions to that position
/

by employees less qualified and less senior than he. See, e .q .,
Gonzales Deposition, at 156, 214-17.

30 Pis' Reply/Opp Class Cert

20
21

CL:73#8

Gonzales has thus far given three days of deposition
testimony. In response to Chevron's queries, he expressed no
objection to being deposed in the presence of management

personnel. See id. at 10-11. Accordingly, Gonzales' current

foreman, Herbert ("Chip") Woodard, attended the deposition. See
id. at 37, 200.

Gonzales is not now, nor has he ever been, off of work
because of a mental disability. Chevron does not claim that he

has ever consulted a psychiatrist or psychologist for any
psychiatric or psychological problem.
/

- 31 - pls' Reply/Opp Class Cert

21
22

ill
ARGUMENT

A. Plaintiffs Are Adequate Class Representatives

The Rule 23(a) requirement that plaintiffs must

"fairly and adequately protect the interests of the class" has

been construed to have three components: (1) competence of

counsel, (2) absence of collusion, and (3) absence of

antagonistic interests between the representatives and remaining

members of the class. Kraszewski v. State Farm Ins. Co., 27 FEP

Cases 27, 32 (N.D. Cal. 1931); see Plaintiffs' Opening
Memorandum, at 41-43.

Chevron does not dispute that plaintiffs' counsel have
the necessary expertise and experience to prosecute this

litigation, and agrees that plaintiffs have "several experienced

lawyers. Opposition, at 31. Chevron has offered no evidence

of collusion. And Chevron apparently concedes that nothing has

occurred in the litigation that indicates the interests of the

representative plaintiffs conflict with, or are in any way

antagonistic to, the interests of other members of the class.
Id.

Chevron does contend, however, that the mental health
of eight of the named plaintiffs renders them incapable of
protecting the interests of other class members. This
contention is wrong.

Fir_st, the assertion that plaintiffs suffer from a
debilitating psychiatric disorder is not only unsupported by
competent medical evidence, but is also refuted by Chevron's own
medical team. Having conducted a plenary review and study of

32 Pis' Reply/Opp Class Cert

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five plaintiffs on temporary disability leave, Drs. Enelow and

Herrera found psychiatric impairment absent in all. Indeed, the

comprehensive reports of Chevron's doctors, based on their own

examinations and tests, conclude that plaintiffs Barefield,

Flores, Francies, Monarrez and Williams suffer no psychiatric

impairment, but do suffer symptoms of job stress as a direct

result of discrimination at the work place. Plaintiffs'

psychiatrist — upon whose preliminary reports Chevron

erroneously relies— / — found the same. Shah Declaration, 11 6.

Furthermore, Dr. Shah believes that all eight plaintiffs are,

from a medical perspective, fully able to serve as class

representatives. Far from casting doubt on plaintiffs'

allegations of discrimination, as Chevron would suggest, the

medical record substantiates the existence of discrimination.

Chevron also cites plaintiffs' answers to a handful of

questions in the Minnesota Multiphasic Personality Inventory

("MMPI"), in an effort to show that plaintiffs are deranged.

The MMPI is a preliminary diagnostic test designed to assist

psychiatrists and psychologists in clinical examination. Shah

Declaration, 11 16. It is a self—administered paper and pencil

test that consists of approximately 560 questions. Id. A

computer program scores the MMPI test and generates a written

34/ „ , .Relying upon selectively extracted language in
Dr. Shah's preliminary diagnostic reports, Chevron argues by
innuendo that plaintiffs' thinking is disordered and psychotic.
The conclusion Chevron wishes to draw from these reports is
rejected not only by Dr. Shah, the author of the reports, but by
Chevron's own medical team, which reviewed the reports and
supplemented them with independent examination and testing. In
any event, the Shah reports, considered in their entirety,
provide absolutely no evidence of mental disorder.

33 Pis' Reply/Opp Class Cert

21
22

report without the intervention of a live mental health

professional. _Id. The report and answers to some questions are

provided to the physician with the warning that the report "is

to be used in conjunction with professional evaluation" and

" [n]o decision should be based solely upon the contents of this

report." See Appendix B, MMPI reports (emphasis added).

Reliance on MMPI results or answers to MMPI questions alone is

"irresponsible." Shah Declaration, \\ 16. Dr. Shah used the

reports in conjunction with his clinical examination, and

concluded that plaintiffs exhibited no disordered thought,

psychosis, or paranoia (i.e ., breaks from reality). Id.

Chevron's medical team came to the same conclusion after

subjecting plaintiffs to additional testing. Thus, the MMPI, in

the opinion of Dr. Shah and Chevron's medical team, does not
support Chevron's claims of derangement.

Indeed, the medical record affirmatively shows that
the answers to MMPI questions cited by Chevron are

untrustworthy. MMPI results were found questionable because of

the "situational" influence of job stress, "over-literal

interpretation," misunderstanding, reading ability, and

socioeconomic class. Plaintiffs' Appendix 28 (Barefield), 37,
41, 44, 52, 66 (Francies) , 74, 75, 58 (Flores); Shah
Declaration, 11 16. Such problems are noted both by Dr. Shah and
Drs. Enelow and Herrera.— ^

3 5 / .— For instance, Chevron's psychiatrist, Dr. Enelow,
found "validity problems" because plaintiff Francies misinter
preted some MMPI questions and the results were at variance from
his clinical examination of Francies. Plaintiffs' Appendix 88.

[Cont'd ]

34 Pis' Reply/Opp Class Cert

Second, Chevron's claim is completely speculative and
unsupported by objective evidence of plaintiffs' inability to

serve as class representatives. This Court has previously

warned that actual inadequacy of representation, rather than

mere speculation, is required to defeat class certification

under Rule 23(a)(4). Kraszewski, 27 FEP Cases at 32. Here,

there is no objective support for any claim of inadequacy.

Chevron cannot cite even one instance when plaintiffs acted or

were unable to act to advance the interests of the class.

Indeed, the record shows precisely the opposite.

35/— [Cont'd]

Chevron's psychiatrist reviewed the aberrational MMPI responses
with Francies, and concluded that his MMPI had produced "false
positive" results:

I went over the critical items with him one by one in
order to determine why his MMPI was coming out so
aberrant. I then learned that he did not clearly
understand the items. The item "I am afraid of losing
my mind" he took to mean becoming anxious and
depressed. The item "I believe I am an condemned
person" was checked because he believed that people
condemned him at Chevron because he was Black.
Similar misunderstandings related to each of the
extremely aberrant items. It became clear that he was
interpreting them very literally. For example, the
statement "When I am with people, I am bothered by
hearing very queer things," was misunderstood by him
to mean that people were talking about homosexual
activity. He stated that it does bother him when
people talk about homosexuals. This same type of
literal interpretation and misunderstanding caused a
false positive MMPI set of elevations. I reviewed all
of his feelings about this with him and learned that
he was attempting to express the fact that he had been
mistreated as a Black person at Chevron, never given a
chance and that he believes that "life should not be like that."

Id. These problems caused "artificially elevated results." Id.

35 Pis' Reply/Opp Class Cert

21
22

Without the assistance of counsel, plaintiffs ex
hausted every avenue of redress short of litigation: Plaintiffs
tried to resolve their claims of classwide discrimination

through Northern California Division management, the union, the
NAACP, and the Mexican American Political Association. See

discovery documents 0962-84. On their own, they presented the

union and management with a petition signed by 21 minority

employees, see id. at 0968-69, and drew up detailed charts

substantiating their classwide claims. See id. 0985-1010.

After these efforts failed, plaintiffs filed administrative

charges of discrimination at the Equal Employment Opportunity

Commission and the California Department of Fair Employment and

Housing on behalf of all similarly situated minority employees.

§.ee Plaintiffs' Opening Memorandum, at 2-3 n.2. Plaintiffs,

moreover, filed a charge with the Office of Contract Compliance

Programs of the U.S. Department of Labor, which framed the

issues presented herein for investigation and resulted in

administrative findings of discrimination favorable to their

cause and probative of classwide discrimination. Id. at 4-5.

After failing to obtain a satisfactory informal reso
lution, plaintiffs sought and obtained the assistance of experi
enced counsel to prosecute this action. Plaintiffs have, from
the start, played a valuable role in this litigation. Chevron
is unable to point to any instance in which plaintiffs'
discovery efforts, trial preparation activities, or settlement
negotiations have been anything less than adequate. Chevron, in
/
/

CL:73#8 36 Pis' Reply/Opp Class Cert

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fact, has been forced by plaintiffs' efforts essentially to

concede that a class action is otherwise proper. See infra.

Third, plaintiffs' stress was caused by the very

conduct the lawsuit would seek to eradicate. Chevron cannot

claim longstanding or pre-existing mental disorder. Indeed,

Chevron's own medical team has definitively concluded that the
symptoms of plaintiffs' job stress were engendered by the

discrimination they encountered, and not vice versa. See supra.

None of the plaintiffs has any history of psychiatric problems

or even a psychiatric consultation prior to the stress now at

issue. Shah Declaration, 11 9. Chevron's psychiatrist and

psychologist found an absence of any pre-existing psychiatric

disorder, as did Dr. Shah. See supra. Every medical authority

36/ _.Time and again, Chevron invokes the fact that
plaintiffs exercised the right, pursuant to Rule 26(c)(5)
exclude from their depositions various Chevron personnel
involved in their cases. However, Chevron cannot say just
the exercise of that right has interfered with plaintiffs' prosecution of this case.

how

Magistrate Woelflen permitted the exclusion of one such
supervisor in the case of plaintiff Francies, but permitted
supervisors not directly involved to attend. See Barefield

lon' at 219* Thereafter, Chevron counsel chose to have their foremen attend the depositions of Bert, Coffee, Thomas
and Gonzales. With two exceptions, plaintiffs listed several
specific supervisors whose presence would affect their
testimony. Monarrez and Williams each stated that the presence
of any supervisor in the close quarters of a deposition without
a supervising judicial officer would affect his testimony.

pl?intiffs' supported by their physician, have stated that they intend to testify in open court in the trial of
this case, no matter who is present, and that they intend to
return to work as soon as their and Chevron's physician oermits
Se^Piamtiffs' Supplemental Declarations and Shah Declaration,*

. the record does not support any claim of plaintiffs'inability to deal with supervisors or managers. P tiffs

CL:73#8 37 Pis' Reply/Opp Class Cert

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22

who has studied plaintiffs attributes their stress-related

symptoms to the discrimination they endured at the work place.

Their only impairment, to paraphrase Chevron's psychiatrist, is

a function of Chevron's racially discriminatory employment
. 17/practices

Chevron further contends that additional plaintiff

Gonzales is incapable of fairly and adequately representing the

class inasmuch as he lacks "candor, recall or knowledge of basic

facts. Opposition, at 38. In support of that assertion,

Chevron cites to some 35 pages out of Gonzales' 539-page

deposition transcript. Moreover, a close inspection of that

testimony, taken over a three-day period, shows Gonzales to be a

forthright and candid witness whose knowledge of the facts

extends as far as Chevron's closed system of promotion permits.

Chevron makes much of the fact that when Gonzales was
asked to identify the promotions he may have been discrimina-

denied, he responded, "All the promotions above

[operator A]." Chevron denies that Gonzales could have been
referring to all such promotions typically received by an

operator A. Yet when asked about the specific job of division

37/ _.Chevron cites two cases in which single named plain-
tiffs, each with longstanding mental illnesses and demonstrable
inability to prosecute the class action were found to be inade
quate class representatives. In Roundtree v. Cincinnati Bell.
Inc^, 22 FEP Cases 960, 963 (S.D. Ohio 1979), the court relied
on medical reports "indicating that plaintiff has suffered phy
sical ailments for at least ten years that have led to a neuro
sis that adversely affects his temperament." Moreover, the
plaintiff was unable to show that he met any of the requirements

Cc®rtification. In Ivy v. Boeing Co., 20 FEP Cases
1 n45 (D*.Kan* 1977), a psychiatrist attested to the plaintiff s paranoid schizophrenia," a condition that may have con

tributed to the several instances of inadequate prosecution
expressly noted by the court. Neither case applies here.

CL:73#8 38 Pis' Reply/Opp Class Cert

21
22

manager, Gonzales stated, "[T]hat is way beyond my expectations
at the moment. I am only an OOA." Gonzales Deposition,

3 8/at 506.— And given the nature of an internal promotion

system, it would not have been unreasonable for him to believe
that he could have been promoted into an upper management

position had he been given the opportunity to demonstrate his
skills as a head operator or operations assistant.

Chevron also contests Gonzales' adequacy on the ground
he did not know "what the qualifications are or should be" for

the head operator and operations assistant positions. Such an

argument is disingenuous, however. Chevron does not publish its

qualification sheets for its employees to see. And Gonzales,
like Chevron, has not undertaken a job validation study to

ascertain just what those qualifications should be. Gonzales

knows that Chevron employs an internal promotion system that

relies on subjective evaluations and results in a failure of

minorities to receive promotions. See Gonzales Deposition,

at 212, 254. That he does not know the contents of Chevron's

qualification sheets or the results of some hypothetical job

validation study does not make him unfit to be a class represen

tative. Not even Chevron's own Human Resources Area Manager

knows all the vagaries of the Northern California Division's

38/ Chevron alludes several times to the fact that
Gonzales conferred with counsel before answering questions.
That a first-time deponent who has never before testified in a
legal proceeding, see Gonzales Deposition, at 6, should seek the
advice of his counsel, does not reflect a lack of candor or knowledge.

39 Pis' Reply/Opp Class Cert

11
12

21
22

promotion system:

Q. Were you aware of the criteria that were
utilized in selecting you for that job?

A. No.
* * *

Q. Do you know who selected you for the
position of area manager?

A . I don't know.

Smith Deposition, at 45, 59.

Chevron is similarly disingenuous in implying that

Gonzales was somehow less than candid in his responses to ques

tions about whether certain members of management discriminate.

Gonzales is not privy to what goes on behind closed doors. What

he does know is that there are few minorities in supervisory

positions. See Gonzales Deposition, at 212, 254. Moreover, as

the courts have so often recognized, discrimination can be

subtle, unintentional, and even unconscious. It can easily work

its way into subjective evaluations, job assignments, or promo

tions. Thus, Gonzales should not be criticized for stating that
[i]t s possible that certain members of management discrimi

nate. See Gonzales Deposition, at 462-70.

Finally, it is not especially surprising that Gonzales
was unable to recall the content of racial slurs to which he had
been subjected. While some people may have vivid recollections
of such incidents, others may block them out. Thus, all that
Chevron is left with is the fact that Gonzales could not recall
what he had meant by a single line in a lengthy letter written
more than a year ago. Gonzales should not, on that basis, be
disqualified from representing the class.

40 Pis' Reply/Opp Class Cert

21
22

Accordingly, all of the named plaintiffs satisfy the
requirements of Rule 23(a) (4) . Chevron's assertions to the
contrary are speculative, unfounded, and erroneous.

^ • Plaintiffs' Claims Are Typical of Class Members

Plaintiffs claims need not be factually identical to
those of the remaining class members; Rule 23(a)(3) requires

only that the claims of named plaintiffs be "typical of the

claims of other class members." The requirement is satisfied by

a showing that they "'arise out of the same remedial and legal

theory."' Kraszewski, 27 FEP Cases at 31, quoting Wofford v,

Safeway Stores, Inc., 78 F.R.D. 460, 18 FEP Cases 1645, 1666

(N.D. Cal. 1978); see Plaintiffs' Opening Memorandum, 40-41.

Chevron does not contest that plaintiffs' claims of employment

discrimination are factually similar to those of other class

members or that they arise out of the same remedial and legal
theory. Chevron objects only on mental health grounds.

Fi r s t, Chevron argues that the job stress suffered by
plaintiffs somehow makes their interests different from those of

the class. Opposition, at 34-35. The simple answer to this

objection was given by Chevron's medical team as well as

Dr. Shah: The symptoms of job stress suffered by named
plaintiffs were caused by Chevron's racially discriminatory

employment practices challenged in this lawsuit, and the remedy
for that stress is to change Chevron's discriminatory practices.
Notwithstanding any stress felt by plaintiffs, their claims do
not differ from those of other class members. The claims are

CL:73#8 41 Pis' Reply/Opp Class Cert

1
2

21
22

precisely the same and plainly arise out of the same remedial
and legal theory as the class claims.— ^

Second, Chevron suggests that the named plaintiffs who
have suffered stress do not have the same interest in obtaining

injunctive relief as class members, most of whom are incumbent

employees. Opposition, at 35, 36-37. That claim is completely

unsupported. Plaintiffs have vigorously sought to establish a
classwide entitlement to injunctive relief for

promotions, job assignments, training and fair

evaluations. All of the plaintiffs have stated

brought this case in order to eliminate discrim

the denial of

performance

that they

inatory practice s
and to achieve an integrated work place for black and Hispanic

employees. See Plaintiffs' Supplemental Declarations. All the

plaintiffs are career Chevron employees who are interested in

advancement. Id. Whatever their entitlement to one-time only
damage claims, such relief simply does not have the same

economic value as their careers in a nondiscriminatory

environment. Three of the plaintiffs, including two suffering
from stress, are working. While six named plaintiffs are on
temporary disability leave because of stress, all have stated

39/— Chevron notes that only one other employee, an
Hispanic, has a pending workers' compensation claim for iob
stress, and that, therefore, plaintiffs' claims are unique.
SrIi?21C?hfUSeS£plf intiffS' discrimination claims, which fully
maJiarv from*• • I ^laSS'•W**h •plaintiffs ' injuries, which may vary from individual to individual. Such factual variations
are not controlling where, as here, the stress injury Irises oSt
of the same remedial and legal theory, i.e., classwide
discrimination. Moreover, it does not follow that not one other
class member has suffered stress as a result of discrimination
Other ciass members^may have been deterred from seeking medical
attention for discrimination-induced stress, just as they may
have been deterred from filing discrimination claims. Y Y

CL:73# 8 42 Pis' Reply/Opp Class Cert

21
22

that they intend to return to work when their physician and

Chevron's physician permit, and all of them should be able to

return to work when discriminatory practices are eliminated.

Id. Thus, there is no divergence of interests with respect to
relief. The claims of plaintiffs and the class are parallel in
that regard.

Third> Chevron objects that there is an inherent
conflict of interest and evidence in establishing, on the one

hand, plaintiffs' temporary disability and, on the other,

plaintiffs' fitness for current or future promotional

opportunities. Opposition, at 35-36. Chevron erroneously

assumes that plaintiffs' temporary stress disability arises from
mental illness, when, as Chevron's own medical team found, the

temporary disability for stress is a direct result of Chevron's

discriminatory employment practices. Thus, in proving temporary

disability, plaintiffs will not disqualify themselves from
promotion. Indeed, they will rely on classwide evidence of

racially discriminatory employment practices. Such proof

diminishes their promotional prospects no more than those of any
other class members.

fourth, Chevron objects that plaintiffs' symptoms of
stress create unique defenses. Opposition, at 36. Once again,

this claim is erroneous because it fails to acknowledge that the

stress plaintiffs' suffer is a consequence of classwide
discrimination.

CL:73#8 43 Pis' Reply/Opp Class Cert

c. Questions of Law or Fact Common To The Class Are Presentpd

Chevron does not dispute the constituent elements of a
showing of commonality under the framework set forth in Harris

v. Pan American World Airways, Inc., 74 F.R.D. 24, 41 (N.D. Cal.

1977); see Kraszewski, 27 FEP Cases at 30; Plaintiffs' Opening

Memorandum, 32-40. The Northern California Division's

promotional, job assignment, performance evaluation and training
practices which are challenged as discriminatory affect the

class as a whole rather than only a few employees. These

practices are uniform, centrally-controlled, and extend

throughout the Northern California Division. Present discovery

shows that they have remained essentially unchanged since 1980.

The class is also uniform, consisting of Northern California

Division employees subject to the challenged practices.

Chevron contests plaintiffs' assertion of commonality
on two grounds: (i) plaintiffs' statistical summaries do not

prove liability; and (ii) Chevron's selection procedures are

proper. Opposition, at 41-43. Neither of these objections is

relevant or correct. In order to establish that class treatment

is appropriate, "plaintiffs need not prove a prima facie case on

the merits or convince the court that they will triumph on the

merits at trial," Kraszewski, 27 FEP Cases at 29 (citing Eisen

v. Carlisle & Jacquelin. 417 U.S. 156, 167 (1974)), and

statistics or evidence of suspect selection procedures may be a

sufficient indication of commonality, even if not dispositive

proof of discrimination. See cases cited in Plaintiffs' Opening
Memorandum, at 35 n.36.

44 Pis' Reply/Opp Class Cert

1
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21
22

Plaintiffs presented statistical data to confirm the

existence of common claims. These statistics show that minority

employees are concentrated in lower-level jobs and their

representation in higher-level jobs diminishes with each

successive job category; that minority employees receive

disproportionately few promotions to higher level jobs; that

minorities are absent from management ranks; and that minority

employees receive disproportionately few relief assignments to

high-level salaried positions. Plaintiffs' Opening Memorandum,

at 19-21, 23. The administrative findings of the Office of

Contract Compliance Programs confirm the thrust of these

statistics, and find broadly-applicable problems in training and

performance evaluations as well. Id., at 22-23, 25-27.

Chevron, with one exception, does not assert that plaintiffs'
statistics are inaccurate or incorrect .AQ./

Instead, Chevron erroneously argues that plaintiffs
have not sufficiently taken account of seniority. First,

Chevron concedes that seniority is not a factor in promotion to

salaried positions. Minority employees held only 2% of such

jobs as of 1985 and received only 1% of the promotions to such

jobs in the preceding four years. Nor is seniority a factor in

relief assignments to salaried positions, only 4% of which went

40/ _ The exception is the statement that the Northern
California Division has employed no Hispanic foremen. Chevron
claims to have employed one, on the basis of a declaration that
cites an employee roster. Declaration of Rosenfield, K 7
(referring to a review of an employee roster, described in 1( 5
as discovery documents 019096-019179). However, the underlying
employee roster shows no Hispanic foremen. Moreover, even if
Chevron were right, the existence of a single Hispanic foreman out of 50 managers is no reason to crow.

45 Pis' Reply/Opp Class Cert

1,
1‘

i:
ij

1£

to minority employees. Second, the Northern California Division
does not use seniority as a factor in its promotional qualifica
tion sheets. Pursuant to the collective bargaining agreement,

seniority is a tiebreaker when employees' qualifications are
thought to be "relatively equal." Third, Chevron erroneously

compares the present seniority of nonminority employees with the

present seniority of minority employees in the same job cate

gories. The appropriate comparison is between the seniority of

minority selectees at the time of selection and the seniority of

those eligible for promotion. Thus, the average present senior

ity of operations assistants, according to Chevron, exceeds 1 3

years. See Exhibit B to Declaration of Joshua Rosenfield.

However, the median seniority of employees at the time of selec-

tion to the job, according to a 1984-85 chart Chevron prepared

for the administrative proceedings, was approximately six years.

See discovery document 016691. Most of the selections were from
the operator A ranks; the average seniority of minority opera

tor A employees, according to Chevron, was 8.6 years. See Exhi

bit B to Rosenfield Declaration. fourth, plaintiffs complain

precisely because less qualified and junior whites often are
promoted over more senior minority employees. See supra.

Chevron also erroneously objects that the 29% minority
representation in operations is an inappropriate selection pool
for assessing Chevron's low workforce representation and selec
tion rate to more responsible jobs. . chevron, however, proposes
no alternative selection pool. For a subjective selection
system, in which upper level jobs are filled from within, it is
appropriate to use this representation, which approximates the

46 f^s Reply/Ono fl Po.-*-

labor pool during the period of the alleged continuing discrimi

nation. E.g., O'Brien v. Sky Chiefs, 670 F.2d 864, 866-67 (9th

Cir. 1982); Watkins v. Scott Paper Co., 530 F.2d 1159, 1193-94
(5th Cir.), cert, denied, 429 U.S. 861 (1976).

The operations job category is the Northern California

Division's predominant occupation whose employees go into posi

tions in other job categories.il/ while making much of the fact

that operator B employees, as opposed to operator A employees,

are not promoted into head and foreman positions, Chevron

neglects to point out that minority representation in the

operator A category is fully 31%. See Plaintiffs' Opening

Memorandum, at 20. Thus, significant disparities exist between

minority representation in operator A positions and both the 1%

minority selection rate for salaried positions and low selection

rates for other higher level jobs. Chevron also neglects to

mention that operator B employees were, in fact, promoted to

operations assistant, maintenance, and technician jobs; only 13%

were minority. Plaintiffs' Opening Memorandum, at 21 n.21.

Moreover, Chevron cannot obscure the fact that the 1%

selection rate of minorities to salaried positions and the 0%

selection rate to foreman and head positions are so low that

they simply cannot be justified, no matter what the relevant
labor pool.

41/— The operations group (29% minority) is the primary
source of promotions^into salaried positions, technician, and
maintenance, see Plaintiffs' Opening Memorandum, at 12, 14,
which have minority selection rates of 1%, 12% and 11%, resoec tively. ^

47 Pis' Reply/Opp Class Cert

With respect to subjective selection criteria,

plaintiffs cited the facial subjectivity of Chevron's generally-
applicable performance evaluation and promotional criteria as

confirming the existence of common questions of law and fact.

See Kraszewski v. State Farm Ins. Co., 38 FEP Cases 197, 239

(N.D. Cal. 1985) (Kraszewski II) . Chevron's answer is that most

of their criteria are objective, and that the use of subjective

criteria is not illicit. Chevron misses the point: it is the

existence of commonality and not the merits that is at issue.

Moreover, the existence of "subjective . . . selection practices

strengthens the inference of discrimination from plaintiffs'

statistical data." Id. at 259. Whether Chevron's selection
criteria fall on the objective or subjective end of the

continuum is immaterial: Chevron must validate the use of

either if unjustified disparate impact results. Atonio v. Wards

Cove Packing Co., Inc., 810 F.2d 1477, 1485 (9th Cir. 1987) (en

banc). In this case, there is clear adverse impact and Chevron

admits that none of its selection criteria has ever been

validated as job-related. See Plaintiffs' Opening Memorandum,
at 27.

Moreover, even a cursory review of Chevron's selection
criteria shows the predominance of subjective criteria. See

Plaintiffs' Opening Memorandum, at 16-17 n.13, 22 n.23, 26 nn.28

& 29 (promotional qualification and performance evaluation

criteria). Even the superintendent for Field Services admitted

that he "often ha[s] difficulty in following the reasoning of

others used in the evaluation process, and perhaps that can be

48 Pis' Reply/Opp Class Cert

Discoveryexpected in this rather subjective procedure."
document 015602.— ^

D * The Class Is So Numerous As To Make Joinder Impracticable

Chevron does not seriously dispute that, absent
special circumstances, a class of 100 or more safely satisfies

the Rule 23(a)(1) numerosity requirement. Kraszewski, 27 FEP

Cases at 29. Nor does Chevron dispute in any way plaintiffs'

assertion and proof that there are at least 116 incumbent black

and Hispanic Northern California Division employees subject to

alleged discrimination in promotion, job assignment, performance
evaluation and training practices, and an indefinite number of

former and future employees so affected. Nor does Chevron

assert any special circumstances which would make joinder of

such a large number of employees practicable. Therefore, the
numerosity requirement is satisfied.— ^

42/
, Chevron wrongly suggests that the findings of the

Office of Contract Compliance Programs are not probative of
classwide discrimination. Opposition, 43. The determination
that each of the original plaintiffs was subject to disoarate
treatment as a result of broadly applicable promotion, job
assignment, performance evaluation, and training practices is
highly probative both of the existence of common questions of

^ac!r' Plaintiffs’ Opening Memorandum, at 35 n.36
fTnd*.Jhe Similarly, the across-the-board failure of the
Northern California Division to meet its obligation to promote
minorities under contemporaneous agreement with the Office of
Contract Compliance Programs, is highly probative of the
existence of common issues concerning the Division's employment practices. ]R3. c J

43/. 77. Chevron argu<Ts that the number of class members whohave filed administrative charges of discrimination is
insufficient to meet the numerosity requirement. Class members,
however, neednot satisfy the jurisdictional requirements of
filing an administrative charge. Inda v. United Air r.inpq
inc^, 565 F. 2d 554, 559 (9th Cir. W V) , cert, denied, ^ s V s.

[Cont'd]
49 Pis' Reply/Opp Class Cert

1
2

6
r-*/

E . The Class Proposed by Plaintiffs Is Correctly Defined

Plaintiffs propose that the class be defined as
follows:

all current, former and future black and
Hispanic persons employed on or after
May 12, 1983 in Chevron U.S.A. Inc.'s
Production Department of the Northern
California Division, Exploration, Land and
Production Department for the Western
Region, excepting clerical employees and
engineers, who have been or continue to be
or may in the future be subject to
discrimination on the basis of race or
national origin pertaining to promotions,
job assignments, performance evaluations,
and training.44/

See_ Revised Proposed Order (filed with this Memorandum) .

Chevron objects on two erroneous grounds. Opposition, at 43-45.
Chevron argues first that the cutoff date should be no earlier

than July 4, 1984, or 300 days prior to the filing of the

initial charge of discrimination with the California Department

of Fair Employment and Housing. It is true that this case is
filed under Title VII and that the limitations period for

43/— ' [Cont'd]
1007 ((1978); Kenna v. Pan Am. World Airwavs. Tnc
1445, 1447-48 (N.D. Cal. 1978); Thornberrv v. Delta
30 FEP Cases 520 (N.D. Cal. 1978T~i ----------

17 FEP Cases
Air Lines,

CL:73#8

Chevron cites Roundtree v. Cincinnati Bell, Inc., 22 FEP
Cases at 961-62, for the proposition that 36 administrative
charges are insufficient to certify a class. While the entire
proposed class was 36 individuals who had filed charges Tn----
Roundtree, the proposed class in the instant case is at least 116 employees.

44/
7~. Plaintiffs have revised their proposed class

definition in two respects: (a) Plaintiffs mistakenly proposed
m °f April 30' 1983' instead of the correct date ofMfy .12' I9?3' see infra; and (b) Chevron proposed that
plaintiffs original proposed definition should be limited to
the specific employment practices challenged by plaintiffs. Plaintiffs have no objection.

- 50 - Pis’ Reply/Opp Class Cert

6
7

Title VII actions is 300 days prior to the initiation of

proceedings with a state agency. Domingo v. New England Fish

Co., 727 F .2d 1429, 1443-43 (9th Cir. 1984). Chevron, however,

ignores that this case is also filed under 42 U.S.C. § 1981 and

that the limitations period for section 1981 actions in

California is three years prior to the filing of the lawsuit.

Jones v. Bechtel, 788 F.2d 571, 573-74 (9th Cir. 1986).

Applying the section 1981 limitations period results in a class

definition date of May 12, 1983. At this preliminary stage of

the proceedings, it is appropriate to use the earlier date of

May 12, 1983 for preliminary class definition purposes. This

Court may later modify this or any other part of the class
definition in light of future proceedings. Rule 23(d).

Chevron next argues that the class should not include

the Northern California Division's three minority technician

employees because none of the plaintiffs works in the support

departments where technicians are assigned. Chevron, however,

does not dispute plaintiffs' showing that technician employees

are subjected to the same classwide practices as operations

employees, and are part of the same centrally-managed, uniform

personnel system. For instance, technician positions are

principally filled by promotion or transfer of operations

employees, see Plaintiffs' Opening Memorandum, at 12, and

technicians are eligible for promotion to higher level jobs,

such as salaried positions. Id. at 14. Nor does Chevron

dispute that plaintiffs' claims are typical of those of minority

technicians. Plaintiffs, therefore, can properly represent the

interests of minority technician employees of the Northern

51 Pis' Reply/Opp Class Cert

1
2

California Division. See, e . g . , Osmer v. The Aerospace Corp.,
30 FEP 204, 205 (C.D. Ca. 1982) .

CONCLUSION

It is ironic that Chevron would seek to defeat this

class action on the basis of plaintiffs' psychological reactions

to the discriminatory treatment accorded them and other minority

employees. The contention is entirely without merit, and should
be rejected.

The motion for class certification should be granted.

Dated: May 21, 1987 Respectfully submitted,

HENRY HEWITT
JOHN ERICKSON
Erickson, Beasley & Hewitt

DENISE HULETT
Mexican American Legal Defense

and Educational Fund
BILL LANN LEE
STEPHEN M. CUTLER
Center for Law in the

Public Interest

ANTONIA HERNANDEZ
E. RICHARD LARSON
THERESA FAY BUSTILLOS

52 Pis' Reply/Opp Class Cert

2
fo

HENRY HEWITT
JOHN ERICKSON
ERICKSON, BEASLEY & HEWITT
12 Geary Street, 8th Floor
San Francisco, California 94108
Telephone: 415/781-3040
DENISE HULETT
Mexican American Legal Defense

Educational Fund
604 Mission Street, 10th Floor
an Francisco, California 94108

Telephone: 415/543-5598

and

BILL LANN LEE
STEPHEN M. CUTLER
Center for Law in the Public I
10951 W. Pico Boulevard, Third
Los Angeles, California 90064
Telephone: 213/470-3000

nterest
Floor

O RIG IN AL
F I L E D

MAY 2 2 1987

WILLIAM L. WHITTAKER
CLERK, U S DISTRICT COURT

NORTHERN DISTRICT OF CAi IF0RNIA

ANTONIA HERNANDEZ
E. RICHARD LARSON
THERESA FAY BUSTILLOS
Mexican American Legal Defense

Educational Fund
634 S. Spring Street, Eleventh
Eos Angeles, California 90014
Telephone: 213/629-2512

and

Floor

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ARCHIE BAREFIELD, j r ., et al.,

Plaintiffs,
v .

CHEVRON U.S.A. Inc.

Defendant.

)
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)
)
)
)
)
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Case No. C86 2427 TEH
Civil Rights
Class Action

IN SUPPORT OF PLAINTIFFS
REPLY TO CHEVRON'S
OPPOSITION TO CLASS
CERTIFICATION

̂ ' 'i

CERTIFICATE OF SERVICE

I• Christina Larson, declare and say:

1* 1 am over the age of eighteen years and am not a
party to this action. I am employed by a member of the bar of

this Court at whose direction this service was made. My

business address is 10951 West Pico Boulevard, Los Angeles,
California 90064.

2. On May 22, 1987, I served the within PLAINTIFFS'
REPLY TO DEFENDANT CHEVRON U.S.A. INC.'S MEMORANDUM IN

OPPOSITION TO MOTION FOR CLASS CERTIFICATION and APPENDIX on

defendant by placing same in the U.S. Mails at Los Angeles,

California, postage thereon fully prepaid, addressed as follows:
Joe C. Creason
William G. Alberti
Steven G. Betz
Pillsbury, Madison & Sutro
225 Bush Street
P.O. Box 7880
San Francisco, CA 94120

Executed this 22nd day of May, 1987, at Los Angeles,
California.

I declare under penalty of perjury that the foregoing
is true and correct.

CL:73#9

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Barefield v. Chevron Plaintiffs' Reply to Defendant Chevron U.S.A. Inc.'s Memorandum in Opposition to Motion for Class Certification

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