Owens v. Texaco, Inc. Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    si?

In the

Bnpwm (Emxrt of %  Itttlri) But to
October Term, 1988

Bobby N. Owens, 

vs.
Petitioner,

Texaco, Inc.,
Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Mark T. McDonald 
Suite 203
Groves Professional Bldg. 
1834 Southmore Boulevard 
Houston, Texas 77004 
(713) 523-7423

Julius LeVonne Chambers 
Eric Schnapper*

NAACP Legal Defense & 
Educational Fund, Inc. 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Petitioner

* Counsel of Record



QUESTION PRESENTED

Where a Title VII plaintiff 
establishes a prima facie case of 
intentional discrimination, may the trier 
of fact reject a defendant's proffered 
explanation of its actions solely because 
the trier of fact finds that explanation 
unworthy of belief?

l



PARTIES

The petitioner in this Court is Bobby 
N. Owens. The respondent is Texaco, Inc. 
The original complaint in this proceeding 
also named as defendants the International 
Association of Machinists and Local 1792 
of that union; the district court 
dismissed the claims against the union 
defendant, and petitioner did not appeal 
that dismissal.

ii



TABLE OF CONTENTS

Question Presented ........... i
Parties ......................  ii
Table of Contents ............ iii
Table of Authorities ........  iv
Opinions Below ............... 1
Jurisdiction .................  2
Statutory Provision and Rule

Involved ...................  2
Statement of the Case .......  3
Reasons for Granting the

Writ .......................  10
Conclusion .................  35

APPENDIX
District Court Findings of 

Fact and Conclusions of
Law, July 1, 1985 ........  la

Court of Appeals Opinion,
October 14, 1988 ........... 24a

Order Denying Rehearing and 
Suggestion for Rehearing 
En Banc, December 6, 1988 .. 42a

Page

iii



TABLE OF AUTHORITIES

Benzies v. Illinois Dept, of 
Mental Health, 810 F.2d 146 
(7th Cir. 1987)   24

Bienkowski v. American Airlines,
Inc., 851 F .2d 1503 (5th Cir.
1988)   22,25

Bhaya v. Westinghouse Elec. Corp.,
832 F .2d 258 (3rd Cir. 1987) ... 12

Brown v. Sierra Nevada Memorial 
Miners Hosp., 849 F.2d 1186 
(9th Cir. 1988)   17

Burton v. State of Ohio, Adult 
Parole Authority, 798 F.2d 164 
(6th Cir. 1986)   17

Carey v. U.S. Postal Service, 812
F .2d 621 (10th Cir. 1987) ______ 19

Carter v. Duncan-Huggins, Ltd.,
727 F .2d 1225 (D.C.Cir. 1984) .. 13

Castle v. Sangamo Weston, Inc.,
837 F .2d 1550 (11th Cir. 1988) .. 16

Chipollini v. Spencer Gifts, Inc.,
814 F .2d 893 (3rd Cir. 1987) . 21,23,25

Chipollini v. Spencer Gifts, 613
F.Supp. 1156 (D.N.J. 1985)   25

Christie v. Foremost Ins. Co.
785 F .2d 584 (7th Cir. 1986) ... 16

Cases: Page

iv



Cases: Page
Dale v. Chicago Tribune Co., 797

F . 2d 458 (7th Cir. 1986) ......  19
Dance v. Ripley, 776 F.2d 370

(1st Cir. 1985) ................  18
Dannellon v. Fruehauf Corp., 794

F .2d 598 (11th Cir. 1986) .....  20
Dea v. Look, 810 F.2d 12

(1st Cir. 1987) ................  18,22
Dorsch v. L.B. Foster Co., 782

F .2d 1421 (7th Cir. 1986) .....  19
Goosetree v. State of Tennessee,

796 F.2d 854 (6th Cir. 1986) ... 19
Gray v. New England Tel. and 

Tel. Co., 792 F .2d 251
(1st Cir. 1986)   18,22,25

Grigsby v. Reynolds Metals Co.,
821 F.2d 590 (11th Cir. 1987) .. 17

Harbison-Walker v. Brieck,, 102
L.Ed.2d 512 (1988)   10,11,31

In re Lewis, 845 F.2d 624 (6th
Cir. 1988)    21

Johnson v. University of 
Wisconsin-Milwaukee, 783 
F . 2d 59 (7th cir. 1988) .......  24

King v. Palmer, 778 F.2d 878
(D.C.Cir. 1985)   22

Lowe v. City of Monrovia, 775
F . 2d 998 (9th Cir. 1985) ......  17

v



Cases: Page
MacDissi v. Valmont Industries,

Inc., 856 F .2d 1054 (8th Cir.
1988) ........................... 16,21

Mathewson v. National Automatic 
Tool Co., 807 F .2d 87 (7th Cir.
1988)   15

Menard V. First Sec. Services 
Corp., 848 F .2d 281 (1st Cir.
1988)    11,18,22

Menzel v. Western Auto Supply Co.,
848 F .2d 327 (1st Cir. 1988) ___  18

O'Connor v. Peru State College,
781 F .2d 632 (8th Cir. 1988) ... 20

Pullman Standard v. Swint, 456
U.S. 273 (1982)   9,25,26

Reed-Baker v. Lincoln Nat. Corp.,
834 F .2d 1373 (7th Cir. 1987) ... 14

Ridenour v. Lawson Co., 791 F.2d
52 (6th Cir. 1986)   19

Roebuck v. Drexel University,
852 F .2d 715 (3rd Cir. 1988) ... 21

Rosenfield v. Wellington Leisure 
Products, Inc., 827 F.2d 1493 
(11th Cir. 1987)   13

Schmitz v. St. Regis Paper Co.
811 F .2d 131 (2d Cir. 1987) ___  14

Texas Department of Community 
Affairs v. Burdine, 450 U.S.

vi



248 (1981) 28,29,32,33
U.S. Postal Service Bd. of Govs.

v. Aikens, 460 U.S.711 (1983) .. 33
Washburn v. Kansas City Life 

Ins. Co., 831 F .2d 1404 (8th 
Cir. 1987) .....................  19

Weber v. Block, 784 F.2d 313
(8th Cir. 1988)   16

White v. Vathally, 732 F.2d 1037
(1st Cir. 1984)     22

Woodbury v. New York City Transit 
Authority, 832 F.2d 764
(2d Cir. 1987)   15

Yarbrough v. Tower Oldsmobile,
Inc., 789 F .2d 508 (7th Cir.
1986)   16

Other Authorities:
28 U.S.C. §1254 (1)   2
42 U.S.C. §2000e-2(a)   2
Title VII, Civil Rights Act

of 1964 ...................  1,5,9,15,16
Rule 52, Federal Rules of

Civil Procedure ................  3
Federal Civil Judicial Procedure

and Rules (1987 ed.) ........... 34

vii



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1988

BOBBY N. OWENS,
Petitioner,

v.
TEXACO, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

The petitioner, Bobby N. Owens, 
respectfully prays that a writ of 
certiorari issue to review the judgment 
and opinion of the Court of Appeals for 
the Fifth Circuit entered in this 
proceeding on October 14, 1988.

OPINIONS BELOW
The decision of the Fifth Circuit is 

reported at 857 F.2d 262 (5th Cir. 1988), 
and is set forth at pp. 24a-41a of the



Appendix. The order of the Fifth Circuit 
denying rehearing and rehearing en banc, 
which is not yet reported, is set out at 
pp. 42a-44a of the Appendix. The district 
court's Findings of Fact and Conclusions 
of Law, which are not reported, are set 
out at pp. la-23a of the Appendix.

JURISDICTION
The original decision of the Fifth 

Circuit was entered on October 14, 1988.
A timely petition for rehearing was denied 
on December 6, 1988. Jurisdiction of this 
Court is invoked under 28 U.S.C.§ 1254(1).

STATUTORY PROVISION AND 
______ RULE INVOLVED_____

Section 703(a)(1) of Title VII of the
1964 Civil Rights Act, 42 U.S.C. §2000e-
2 (a), provides in pertinent part:

It shall be an unlawful practice 
for an employer ... to discharge 
any individual . . . because of 
such individual's race.

2



Rule 52(2), Federal Rules of Civil
Procedure, provides in pertinent part:

Findings of fact, whether based 
on oral or documentary evidence, 
shall not be set aside unless 
clearly erroneous, and due 
regard shall be given to the 
opportunity of the trial court 
to judge of the credibility of 
the witnesses.

STATEMENT OF THE CASE 
Petitioner, a black male, was hired 

by Texaco in August 1977. In 1980 
petitioner entered a craft training 
program for carpenters; petitioner 
completed that program within 30 months, 
and was promoted to carpenter. In early 
1983 Texaco announced its intention to 
lay off a limited number of workers. Over 
the objection of the International 
Association of Machinists, which repre­
sented the carpenters, Texaco laid off 
petitioner, and retained in his stead a 
white carpenter who had been hired in 
1981.

3



As of 1983 the seniority rule 
governing layoffs was to some degree a 
matter of contention between Texaco and 
I AM. For many years prior to 1980 it was
Texaco's practice to calculate the 
seniority of a craftsman from the date on 
which he entered the craft training 
program. In 1980, the year in which Owens 
entered the carpenter training program, 
Texaco insisted that the use of entry date 
seniority be restricted to craftsmen who 
completed the training program within 30 
months; craftsmen who required longer to 
complete the program, Texaco proposed, 
would be given a seniority date based on 
the day they completed the training 
program. In discussions in 1980 the I AM 
objected to Texaco's proposed alteration 
of the practice, and for several years 
the matter remained unresolved. When 
layoffs were proposed in 1983, Owens had

4



successfully completed the training 
program in less than 3 0 months. The I AM 
offered to accept Texaco's unresolved 1980 
proposed version of the seniority rule, a 
proposal which would have protected Owens 
from layoff. Texaco, however, disavowed 
its longstanding seniority position, 
calculated Owens seniority on the basis of 
the date on which he had completed the 
program, and laid him off.

After filing charges with the EEOC, 
Owens commenced this action under Title 
VII in the United States District Court 
for the Eastern District of Texas. The 
case was tried in 1984 by Judge Joe J. 
Fisher, sitting without a jury. On July 
1, 1985, Judge Fisher issued findings of 
fact and conclusions of law, holding that 
Texaco was racially motivated when it 
disavowed its own proposed seniority rule, 
and laid off Owens rather than a more

5



Therecently hired white carpenter.1 
district judge emphasized that petitioner 
was the only black in the training program 
at issue (10a, 13a) , and that he was the
only employee adversely affected by 
Texaco's refusal to implement the very 
seniority rule which the company had 
advocated since 1980. (13a). The
district judge found that Texaco officials 
had inaccurately assured petitioner that 
he would indeed receive entry date 
seniority (10a, 11a). The record also
revealed that in late 1982, before any 
layoffs were proposed, Texaco itself had 
issued a seniority list stating that 
Owens' classification seniority date was 
"8/18/80," the day he had entered the 
craft training program. (PX 34, p. 8). 1

1 The original complaint named as 
defendants both the I AM and its local. 
The district court dismissed the claims 
against those defendants, and petitioner 
did not appeal that dismissal. (3a).

6



The district court held that
petitioner had established a prima facie 
case of intentional racial discrimination.
(19a-20a). Texaco attempted to rebut that 
prima facie case by offering testimony 
that it decided to lay off petitioner, 
rather than the more recently hired white, 
on the advice of counsel. The attorney 
who allegedly gave that advice was called 
as a witness, and was questioned by the 
trial judge himself. The judge expressed 
from the bench doubts about the cred­
ibility of the attorney at issue, and 
subsequently held that Texaco's purported 
explanation was "a mere pretext to cover 
up their discriminatory actions against 
plaintiff because of his race." (21a-22a).

The Fifth Circuit read the district 
court's opinion to hold that, even in the 
absence of a more specific agreement 
between Texaco and I AM on the issue, the

7



general terms of the collective bargaining 
agreement required that entry date 
seniority be used to calculate the 
seniority date of carpenters. (3la-36a). 
The appellate court held that this was an 
error of law, since the interpretation of 
that collective bargaining agreement was 
the sole province of the arbitrator to 
whom that very question had been referred, 
and who had interpreted the contract to 
call for completion date seniority in the 
absence of a separate agreement to the 
contrary. (Id.) Rather than remand the 
case for further proceedings consistent 
with its own view of the law, however, the 
Fifth Circuit proceeded to decide the case 
itself, holding that Texaco was not 
racially . motivated when it refused to 
adhere to its own proposal to accord entry 
date seniority to any person who had

8



completed his craft training within 30 
months. (36a-38a).

Petitioner sought rehearing in the 
court of appeals, expressly requesting 
that Judge Fisher be accorded an 
opportunity to reassess the evidence in 
light of the error of law that had been 
identified by the panel decision. 
Petitioner urged that such a remand was 
required by Pullman Standard v. Swint, 456 
U.S. 273, 291 (1982).2 Petitioner also
requested that rehearing or rehearing en 
banc be granted to address with greater 
care the pivotal question raised by the 
action of the original panel —  whether 
under Title VII Judge Fisher could reject 
Texaco's explanation of its actions 
because he found the critical defense

Petition for Rehearing by 
Plaintiff-Appellee (5th Cir. No. 86-2551), 
pp. 3-4.

9



testimony unworthy of belief.3 Rehearing 
and rehearing en banc were denied without 
opinion (42a-47a).

REASONS FOR GRANTING THE WRIT 
This case presents the recurring 

issue which this Court considered but did 
not resolve in Harbison-Walker v. Brieck 
(No. 87-271) —  whether a trier of fact
may reject a Title VII defendant's 
proffered explanation of its actions

J Id. at 3 ("The panel decision in 
this case presents the question of whether 
in an Title VII case in which the 
plaintiff has made out a prima facie 
case, the trier of fact can reject the 
employer's explanation as unworthy of 
credence"); Suggestion for Rehearing En 
Banc, p. iii (the question on which 
rehearing en banc was sought was "In a 
Title VII case in which the plaintiff 
establishes a prima facie case of 
discrimination, may the trier of fact 
reject the employer's explanation because 
it finds that explanation unworthy of 
credence?"). In our brief before the 
original panel we also emphasized that 
Judge Fisher's finding of pretext had been 
based on his evaluation of the demeanor 
and credibility of the relevant company 
witnesses. Brief of Appellee Bobby N. 
Owens, pp. 22-23.

10



simply because the trier of fact finds 
that explanation unworthy of belief. That 
question was extensively briefed in 
Harbison-Walker. and was the central issue 
at the oral argument in that case. 
Harbison-Walker was ultimately dismissed 
on the ground that certiorari had been 
improvidently granted, 102 L.Ed.2d 512 
(1988), apparently because the record in 
the case did not in fact present the issue 
posed by the petition. The underlying 
problem considered in Harbison-Walker. 
however, remains of ongoing importance.

The Fifth Circuit panel in the 
instant case followed the practice 
advocated by the employer in Harbison- 
Walker , simply accepting as truthful 
defense testimony which the trial judge 
evidently did not believe. (36a-39a). A 
number of other circuit court opinions 
proceed in this manner. E.g. Menard v.

11



First Sec. Services Coro. , 848 F.2d 281,
287-88 (1st Cir. 1988). Several circuits,
on the other hand, insist that the
appellate courts cannot rely on an
employer's explanation which was, or might
have been, disbelieved by the trier of
fact. The Third Circuit has repeatedly
held that a trier of fact can reject an
employer's proffered explanation simply
because it does not believe the pivotal
defense testimony. In Bhava v.
Westinghouse Elec. Coro.. 832 F.2d 258 (3d
Cir. 1987) , the court of appeals
reinstated for this reason a jury finding
of discrimination that had been overturned
by the district court:

The district court apparently 
thought that the defendant 
dispelled any inference of 
d i s c r i m i n a t i o n  m e r e l y  by 
introducing testimony of a 
legitimate reason for its 
actions. Evaluation of witness 
credibility is the exclusive 
function of the jury, and where 
the only evidence of intent is

12



oral testimony, a jury could 
always choose to discredit it.

832 F.2d at 262 (emphasis added). The
District of Columbia Circuit adheres to
the same rule:

The Company now appears to argue 
that its mere articulation of 
any p u t a t i v e l y  b us in e s s  
rationale requires the court to 
take the case from the jury. We 
reject that argument.... [The] 
e m p l o y e r ' s  ... a l l e g e d  
justifications for the disparate 
treatment was presented through 
the testimony of past or current 
e m p l o y e e s ,  o f f ic er s, or 
owners.... The weight to be 
given to these offered business 
justifications thus required an 
e v a l u a t i o n  of w i t n e s s  
credibility... [A] jury could
always choose to discredit the 
proffered explanation.... "The 
jury, whose province it was, 
could disbelieve the . . . 
s u p e r v i s o r s '  t e s t i m o n i a l 
explanation."

Carter v. Duncan-Huggins, Ltd.. 727 F.2d 
1225, 1234-35 (D.C. Cir. 1984); but see
id. at 1239-47 (Scalia, J., dissenting). 
Similarly, in Rosenfield v. Wellington 
Leisure Products. Inc.. 827 F.2d 1493

13



(11th Cir. 1987), the Eleventh Circuit 
reinstated a disputed jury verdict because 
"[a]ssessing the credibility of witnesses 
is a task generally reserved for the 
finder of fact." 829 F.2d at 1497. 
Decisions in the Second and Seventh 
C i r c u i t s 4 u p h o l d  f i n d i n g s  of 
discrimination because the trier of fact

4 Reed-Baker v. Lincoln Nat. 
Coro.. 834 F .2d 1373, 1378 (7th Cir. 1987) 
("Here Judge Lee found that Lincoln's 
management lied about its real reasons for 
personnel actions against Baker.... Judge 
Lee did not believe Lincoln's witnesses 
when they asserted these business 
reasons.") (emphasis in original);
Schmitz v. St. Regis Paper Co. . 811 F.2d
131, 132 (2d cir. 1987) ("St. Regis
evidently does not understand the effect 
that [defense witness] Thaden's testimony 
and demeanor on the witness stand had on 
Judge Broderick, the trier of fact. The 
Judge could fairly conclude from Thaden's 
testimony and demeanor that he harbored a 
discriminatory attitude toward Schmidt.... 
Judge Broderick evidently did not believe 
Thaden's testimony ... Judge Broderick's 
conclusion therefore rested on his 
credibility determination. Having 
observed Thaden testify in court, Judge 
Broderick was in a better position to 
assess Thaden's credibility than this 
Court is on appeal.")

14



had concluded that the critical defense 
witnesses were lieing.

There is disagreement about the 
general significance of credibility- 
determination in Title VII cases. The 
decision in the instant case, which simply 
ignored the district court's possible 
evaluation of the credibility of 
respondent's witnesses, is not atypical.
The Second Circuit has gone so far as to
express doubts about the propriety of
r e l y i ng in Title VII cases on
determinations as to the credibility of 
the plaintiff's witnesses.5 On the other 
hand, the Seventh,6 Eighth7 and Eleventh8

6 Woodbury v. New York City 
Transit Authority. 832 F.2d 764, 771 (2d 
Cir. 1987) (trial court's reliance on "the 
'sincere impressions' of plaintiffs' 
witnesses constitute[d] a ... dubious 
basis for the district court's finding of 
discrimination").

6 Mathewson v. National Automatic 
Tool Co. . 807 F . 2d 87, 90 (7th Cir. 1986) 
("in an employment discrimination case ...

15



circuits treat credibility determinations 
as critical in Title VII disparate 
treatment cases. The Sixth Circuit 
attaches particular importance to the 
testimony and cross-examination of the 
specific supervisory official who 7 8

the result frequently turns on sensitive 
and difficult factual questions involving 
motive, thus often making the credibility 
of witnesses decisive."); Yarbrough v. 
Tower Oldsmobile, Inc.. 789 F.2d 508, 513 
(7th Cir. 1986); Christie v. Foremost Ins. 
Co. 785 F .2d 584, 586 (7th Cir. 1988).

7 MacDissi v. Valmont Industries. 
Inc. . 856 F .2d 1054, 1059 (8th Cir. 1988) 
("we defer to the judgment of the District 
C o u r t ,  p a r t i c u l a r l y  w h e r e  its 
understanding of [the employer's] defense 
is enhanced (as ours is not) by its 
observation of [the employer's] witnesses 
on the stand."); Weber v. Block. 784 F.2d 
313, 316 and n. 5 (8th Cir. 1988)).

8 Castle v. Sangamo Weston. Inc. . 
837 F .2d 1550, 1559 (11th Cir. 1988) ("The 
jury found Sangamo Weston's explanations 
unworthy of credence. Assessing the . . . 
credibility of witnesses is reserved 
for the trier of fact.")

16



personally made the disputed personnel 
decision.9

T he re is also a w i d e s p r e a d  
disagreement about whether a plaintiff 
must offer additional evidence if his or 
her prima facie case has been rebutted by 
the employer's articulation of a non- 
discriminatory reason for its actions. 
The Ninth10 11 and Eleventh Circuits11 hold

y Burton v. State of Ohio, Adult 
Parole Authority. 798 F.2d 164, 167 (6th
Cir. 1986).

10 Brown v. Sierra Nevada Memorial
Miners Hosp. . 849 F.2d 1186, 1192 (9th 
Cir. 1988) ("It is obvious that a strong 
prima facie case cannot be neutralized by 
weak evidence of a legitimate reason for 
the challenged action."); cf. Lowe v. City 
of Monrovia. 775 F.2d 998, 1008 (9th Cir.
1985) .

11 Grigsby v. Reynolds Metals Co..
821 F.2d 590, 595-96 (11th Cir. 1987)
("the i n f e r e n c e  of inte ntional 
discrimination raised by a plaintiff's 
prima facie case may be stronger or 
weaker, depending upon the facts of the 
particular case.... In some cases, the 
defendant's evidence of a legitimate non- 
discriminatory reason for its actions may 
be so strong as to rebut completely the

17



that the prima facie case, at least if it 
is a strong one, may be sufficient to 
overcome the weight of that rebuttal 
evidence. On the other hand, the First12 
Circuit holds that the prima facie case is 
completely dissipated by the introduction 
of that explanation. The First,13

inference raised by the plaintiff's prima 
facie case.") (emphasis added).

12 Menard v. First Sec. Services 
Coro. . 848 F. 2d 281, 287 (1st Cir. 1988) 
("the inference of discrimination created 
by the prima facie case is dispelled once 
the employer's reason is stated"); Pea v. 
Look. 810 F . 2d 12, 15-16 (1st Cir. 1987) 
("the inference of discrimination created 
by the prima facie case is dispelled once 
the employer's reason is stated").

13 Menzel v. Western Auto Supply 
Co. . 848 F . 2d 327, 329 (1st Cir. 1988) 
("Plaintiff must disprove the defendant's 
reasons.... The employer provided 
specific, non-discriminatory reasons for 
the dismissal . . . Menzel had to address 
those reasons....") (emphas i s in 
original) ; Gray v. New England Tel, and 
Tel. Co., 792 F.2d 251, 255-56 (1st Cir.
1986); Dance v. Ripley, 776 F.2d 370, 374 
(1st Cir. 1985).

18



Seventh14 and Tenth15 Circuits insist 
that, when such an explanation has been 
offered, the plaintiff must adduce 
evidence specifically attacking each of 
the proffered reasons. But the Sixth,16 
Eighth17 and Eleventh18 Circuits have

14 Dale v. Chicago Tribune Co.. 797
F. 2d 458, 464 (7th Cir. 1986) ("in order
to rebut the Tribune's proffered 
explanation, Dale must refute the 
Tribune's specific explanations"); Dorsch 
v. L. B. Foster Co.. 782 F.2d 1421 (7th 
Cir. 1986).

15 Carey v. U. S. Postal Service. 
812 F .2d 621 (10th Cir. 1987).

16 Goosetree v. State of Tennessee,
796 F . 2d 854, 861 (6th Cir. 1986) ("It is
clear that the plaintiff need not 
introduce new evidence regarding 
pretext"); Ridenour v. Lawson Co.. 791
F.2d 52, 56 (6th Cir. 1986).

17 Washburn v. Kansas City Life
Ins. Co.. 831 F . 2d 1404, 1408 (8th Cir.
1987) ("the district court concluded that 
Washburn did not meet his ultimate burden 
of showing that his age was a determining 
factor in his discharge, because he had 
failed to provide sufficient rebuttal 
evidence after defendant's showing of 
nondiscriminatory reasons for his 
discharge. . . . Washburn was not
n e c e s s a ri l y required to present

19



expressly rejected that requirement, 
holding that a plaintiff may rely simply 
on the probative force of the evidence 
adduced to establish his or her prima 
facie case.

Underlying these disputes is a more 
far reaching disagreement about what 
inference, if any, should be drawn if the 
trier of fact --based on credibility or 
other evidence —  concludes that an 
employer's proffered explanation of its 
conduct is untrue. The Third, Sixth and 
Eighth Circuits hold that the proffer of 
an inaccurate explanation is itself

additional rebuttal testimony following 
K.C. Life's showing of nondiscriminatory 
reasons for Washburn's termination") 
(emphasis in original); O'Connor v. Peru 
State College. 781 F.2d 632, 637 (8th Cir. 1986).

Dannellon v. Fruehauf Coro.. 794 
F.2d 598, 601 (11th Cir. 1986) (rejecting 
contention that plaintiff was required to 
adduce "new evidence after the defendant 
a r t i c u l a t e d  its reasons for her discharge.")

20



substantial evidence of intentional 
discrimination.19 * * The District of 
Columbia Circuit goes even further, 
holding that evidence successfully 
discrediting a proffered explanation

19 MacDissi v. Valmont Industries. 
Inc. . 856 F .2d 1054, 1059 (8th Cir. 1988)
("As a matter of both commonsense and 
federal law, an employer's submission of a 
discredited explanation for firing a 
member of a protected class is itself 
evidence which may persuade the finder of 
fact that such unlawful discrimination 
actually occurred"); Roebuck v. Drexel 
University. 852 F.2d 715, 734 n.32 (3rd
Cir. 1988) ("falsity or incorrectness of 
one" proffered explanation permits an 
inference that all the employer's 
explanations are pretextual); In re Lewis. 
845 F. 2d 624, 633 (6th Cir. 1988) ("The 
more guestionable the employer's reason, 
the easier it will be for the jury to 
expose it as pretext"); Chipollini v. 
Spencer Gifts. Inc.. 814 F.2d 893, 899
(3rd Cir. 1987) ("If the plaintiff 
convinces the trier of fact that it is 
more likely than not that the employer did 
not act for its proffered reason, then the 
employer's decision remains unexplained 
and the inferences from the evidence 
produced by the plaintiff may be 
sufficient to prove the ultimate fact of 
discriminatory intent....")

21



mandates a finding of discrimination.20 
But the First21 and Fifth22 Circuits hold

20 King v. Palmer. 778 F.2d 878,
880-81 (D.C. Cir. 1985) ("Having
determined that [plaintiff] King had 
discredited the defendants' explanation, 
the trial court was required to grant 
judgment in her favor. In other words, 
Ms. King should have prevailed because the 
defendants never rebutted the 'presumption 
t h a t  t h e  e m p l o y e r  u n l a w f u l l y  
discriminated'").

21 Menard v. First Sec. Services
Corp. , 848 F . 2d 281, 287 (1st Cir. 1988)
("a claimant 'cannot meet his burden of 
proving "pretext" by refuting ... the 
defendants' articulated reason'"); Pea v. 
Look, 810 F .2d 12, 15 (1st Cir. 1987)
(same); White v. Vathallv. 732 F.2d 1037, 
1042 (1st Cir. 1984) (a showing of pretext 
"does not relieve the plaintiff of the 
burden of persuasion on the ultimate 
issue of discrimination") ; Gray v . New 
England Tel, and Tel. Co.. 792 F.2d 251, 
255 (1st Cir. 1986) ("evidence contesting 
the factual underpinnings of the reasons 
proffered by [the employer] ... are 
insufficient ... to present a jury 
question").

22 Bienkowski v. American Airlines.
Inc. . 851 F .2d 1503, 1507-08 (5th Cir.
1988) (verdict for plaintiff could not be 
justified merely by evidence that the 
employer's "reasons for firing him are not 
justified or supported by objective 
facts"; finding that employer's account 
of the facts was incorrect "would not lead

22



that a plaintiff cannot establish pretext 
merely by showing that the proffered 
explanation was inaccurate; these circuits 
reason that it is possible defense 
witnesses may lie merely to cover up a 
purpose other than illicit discrimina­
tion.23 In the First and Fifth Circuits a

to a conclusion that the employer's 
version is a pretext for ... discrimination.")

23 The clearest exposition of this 
view is in Judge Hunter's dissenting 
opinion in Chioollini:

"An employer's proffered reason 
for terminating an employee may 
be pretextual without violating 
the ADEA or any other civil 
rights statute. An employer 
motivated by ill-will, nepotism, 
or unpublicized financial 
problems ... is just as likely 
to use a pretextual explanation 
for his action as is an employer 
m o t i v a t e d  by statutorily- 
prohibited discrimination.. . .
By allowing the plaintiff to 
withstand defendant's motion for 
summary judgment merely, by 
showing pretext, the majority 
opens the door for . . . recovery 
. . . based on any of the non- 
d i s c r i m i n a t o r y  r e a s o n s  enumerated above."

23



prima facie case can apparently be 
decisively rebutted with false, even 
perjurious testimony. In that context, it 
is understandable that the panel in the 
instant case might have regarded as 
irrelevant the possibility that the 
district judge had concluded that the 
pivotal defense witness was not telling 
the truth. The Seventh Circuit takes an 
intermediate position, holding that 
defense evidence proffering an inaccurate 
explanation, although constituting proof 
of discrimination, is nonetheless 
sufficient to rebut a plaintiff's prima 
facie case of discrimination.24 The Fifth

814 F .2d at 903 (emphasis added).
24 Benzies v. Illinois Dept. of 

Mental Health. 810 F.2d 146, 148 (7th Cir. 
1987) ; cf. Johnson v. University of 
Wisconsin-Milwaukee. 783 F.2d 59, 64 (7th 
Cir. 1986) ("plaintiff must show that 
defendant's proffered reason is not just a 
pretext, but a pretext for discrimina­
tion") .

24



Circuit expressly disapproves of the rule 
in the Third Circuit.25 In one of the 
Third Circuit cases, a dissenting opinion 
relied on the contrary First Circuit 
rule.26 One of the earlier First Circuit 
cases relies on the district court opinion
later overturned in the Third Circuit.27

The procedural posture of the instant
case is the same as that of Pullman
Standard v. Swint. 456 u.s. 273 (1982).
The district court here found that Texaco

Bienkowski. 851 F.2d at 1508 n.6 
("The Third Circuit has held ... that if a 
plaintiff's proof consists of only a 
refutation of the employer's legitimate 
nondiscriminatory reason ... plaintiff may 
o b t a i n  a f a v o r a b l e  v e r dict of 
discrimination. Chipollini v. spPnnPr
Gifts, 814 F. 2d 893 (3rd Cir. 1987)___
We disagree with this view.")

26 Chipollini v. Spencer Gifts. 814 
F.2d at 903 (dissenting opinion) (citing Whited.

p 7 Gray v.New England Tel, and Tel. 
Co^, 792 F .2d at 255, citing Chipollini v. 
Spencer Gifts, 613 F. Supp. 1156 (D.N. J. 
1985), rev'd 814 F.2d 893 (3rd Cir. 1987).

25



was guilty of intentional racial
discrimination in laying off petitioner, a
black carpenter, rather than a more
recently hired white carpenter. The Fifth
Circuit ruled that the trial court's
finding was tainted by an error of law,
because the district court had failed to
treat as binding on it an arbitrator's
construction of the relevant collective
bargaining agreement (3 la-36a). In that
circumstance, Swint ordinarily requires
that a case be remanded to the district
court for additional findings of fact.

When an appellate court discerns 
that a district court has failed 
to make a finding because of an 
erroneous view of the law, the 
usual rule is that there should 
be a remand for further 
proceedings.... "[Fjact finding 
is the basic responsibility of 
district courts, rather than 
appellate courts...."

456 U.S. at 291. Rather than remanding 
the case as required by Swint, however, 
the fifth circuit made its own evaluation

26



of the evidence, and found that there had 
been no intentional discrimination.

The district court in the instant 
case held that petitioner had established 
a prima facie case of discrimination 
(19a-20a). Texaco responded by offering 
testimony adducing a non-racial explana­
tion for its actions; its witnesses 
asserted that Texaco had rejected a 
seniority rule that would have protected 
petitioner from dismissal —  a rule which 
the company itself had repeatedly proposed 
—  because of concern that the company 
might be sued by the more recently hired 
white carpenter. (21a)28 The district 
judge who heard that testimony, parti­
cularly the testimony of the Texaco 
attorney who allegedly warned that the

There is a dispute regarding 
which company officials were aware of the 
race of the two individuals affected by 
this decision.

27



company be sued for adopting its own 
proposed seniority rule, rejected it as a 
"pretext." (21a) See Texas Department of 
Community Affairs v. Burdine. 450 U.S. 
248, 255-56 (1981).

This is clearly a case in which the 
district court's decision turned on the 
trial judge's doubts about the credibility 
of the company attorney called as a 
witness by Texaco. That defense witness 
initially testified that he advised 
against adhering to Texaco's own seniority 
proposal solely because layoffs had 
already been announced;29 after lengthy 
cross-examination by Judge Fisher, 
however, the attorney changed his story, 
and asserted that the imminent layoffs 
were not a factor in his decision.29 
Judge Fisher's comments from the bench

29 Tr., v. 2, P- 233 .
30 Tr., v. 2, P- 253 .

28



during this testimony made clear the 
judge's considerable reservations about 
its credibility:

Now do you not find that a
little inconsistent?31
Well, we will take what you say, 
but the Court hears what you
said but we don't necessarily 
believe that those are the
correct facts.32
The Court has a hard time 
following that reasoning....33
[The attorney's purported 
advice] is a very thin reason 
and a very thin justification 
and the fact is that it just
will not hold water.34

It is evident that Judge Fisher simply did
not believe the testimony offered by
Texaco to rebut petitioner's prima facie
case; at the least, under Swint. the trial
judge should have been accorded an

31 Id. v. 2, p. 243 .
32 Id., v. 2, p. 247
33 Id., V. 2, p. 251
34 Id. V. 2, p. 294.

29



opportunity to reevaluate his view of the 
testimony in light of the Fifth Circuit's 
legal holding concerning the construction 
of the relevant collective bargaining 
agreement.

The Fifth Circuit, however, refused
to remand the case because the appellate
court credited the critical disputed
testimony concerning Texaco's refusal to
adhere to its own seniority proposal:

When the I AM approached Texaco 
in 1983 and offered to agree to 
Texaco's request to limit 
training course seniority to 
those completed in 30 months, 
Texaco consulted its house 
counsel, Sheil. Sheil advised 
Texaco that although the company 
had the right to agree to the 
proposal at that juncture, he 
recommended against it. In his 
opinion, changing the seniority 
list after a layoff had been 
announced would create a greater 
risk of ultimate liability than 
not changing it.... Texaco 
relied on Shell's advice ... 
Shell's advice was sound, but 
even if it had not been so, 
there is no evidence that 
Texaco's reliance on it was

30



unreasonable or merely a pretext
to cover a racial motive.

(36a-39a). This critical position of the 
Fifth Circuit opinion simply parrots, and 
accepts without question, the very 
testimony which the trial court evidently 
did not believe. It is unclear whether 
the panel members personally credited the 
testimony of Texaco's witnesses, or 
whether they felt the courts were legally 
obligated to accept such testimony as 
truthful, even if they thought otherwise, 
unless the testimony was directly con­
tradicted by evidence other than the 
original prima facie case of discrimi­
nation.

The resolution of this case turns on 
the very question briefed and argued but 
not resolved in Harbison-Walker. If in a 
Title VII case a judge can reject a 
defendant's rebuttal explanation because 
the judge finds the defense testimony

31



unbelievable, then the decision of the 
Fifth Circuit was error. In this case the 
possibility that the trier of fact might 
find such testimony incredible is not 
merely theoretical; the record makes clear 
that Judge Fisher had severe doubts about 
the veracity of the key testimony. Con­
versely, if Judge Fisher would under 
Burdine be legally compelled to accept 
that testimony as truthful —  even though 
the demeanor of the relevant witnesses, 
and other circumstances, convinced him 
they were lying —  then there was no need 
to remand this case for additional 
findings of fact.

The Fifth Circuit decision in the 
instant case is clearly inconsistent with 
this Court's decision in Burdine. Burdine 
squarely holds that, if a discrimination 
case goes to trial, the trier of fact may 
indeed reject the defendant's explanation

32



as pretextual solely on the basis of the
prima facie case and the lack of
credibility of the witness offering the
employer's justification.

[P]laintiff's initial evidence 
... and inferences properly 
d r a w n  t h e r e f r o m  may be 
considered by the trier of fact 
on the issue of whether the 
defendant's explanation is 
pretextual. Indeed, there may 
be some cases where the 
plaintiff's initial evidence, 
combined with effective cross- 
examination of the defendant 
will suffice to discredit the 
defendant's explanation.

450 U.S. at 255 n. 10. Burdine stressed
that a plaintiff may prevail, inter alia,
"by showing that the employer's proffered
explanation is unworthy of credence." 450
U.S. at 256.35

The Fifth Circuit, although not 
denying that petitioner had established a

JD £f • U.S. Postal Service Bd. of 
Govs, v. Aikens. 460 U.S. 711, 714 n. 3 
(1983) (trier of fact to decide regarding 
testimony "whatever weight and credence it 
deserves.")

33



prima facie case of discrimination,
asserted that there was "no evidence" that
Texaco's explanation was pretextual (39a);
the court of appeals evidently assumed
that the evidence relied on to establish
the prima facie case could not also be
relied on to discredit Texaco's non-racial
defense of its actions. This failure to
consider the prima facie case itself as
evidence of pretext was squarely
inconsistent with the Federal Rules of
Evidence. The Advisory Committee note to
Rule 301 states in part:

The so-called 'bursting bubble' 
t h e o r y ,  u n d e r  w h i c h  a 
presumption vanishes upon the 
introduction of evidence which 
would support a finding of the 
nonexistence of the presumed 
fact, even though not believed, 
is rejected as according 
presumptions "to slight and 
evanescent" an effect.36

Federal Civil Judicial Procedure 
and Rules, 274 (1987 ed.) (emphasis 
added).

34



Where, as here, a plaintiff adduces 
evidence establishing a prima facie case, 
and thus a presumption of discrimination, 
the decisionsof this Court do not permit a 
defendant to rebut that presumption with 
testimony which the trier of fact, based 
on demeanor evidence and any other 
relevant circumstances, concluded was 
untruthful.

CONCLUSION
For the above reasons, a writ of 

certiorari should be granted to review the 
judgment and opinion of the Fifth Circuit.

Respectfully submitted,

MARK T. MCDONALD 
Suite 203
Groves Professional Bldg. 
1834 Southmore Boulevard 
Houston, Texas 77004 
(713) 523-7423

35



JULIUS LeVONNE CHAMBERS 
ERIC SCHNAPPER*

NAACP Legal Defense & 
Educational Fund, Inc. 

16th Floor 
Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Petitioner
*Counsel of Record

March, 1989

36



A P P E N D I X



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 

BEAUMONT DIVISION

BOBBY N. OWENS *
*

VS. *

*

TEXACO INC., AND THE *
INTERNATIONAL ASSOCIATION *
OF MACHINISTS AND AEROSPACE * 
WORKERS, AND THE INTERNATIONAL * 
ASSOCIATION OF MACHINISTS AND * 
AEROSPACE WORKERS, LOCAL 1792 *

CIVIL 
ACTION 
No. B-8 3- 
1067-CA

Honorable Mark T. McDonald 
Mark T. McDonald Associates 
1834 Southmore Boulevard 
Houston, Texas 77004

Attorney for Plaintiff
Honorable James D. Garrison 
Honorable Archangela M. DeSilva  
P. O. Box 52332 
Houston, Texas 77052

Attorney for Defendants

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above-captioned cause came on for 
trial before the Court on January 24, 
1985, and the Court having considered the 
pleadings, the evidence, the arguments of

la



counsel and having been fully advised of 
the premises, now makes and files its 
Findings of Fact and Conclusion of Law in 
accordance with Rule 52 of the Federal 
Rules of Civil Procedure.

FINDINGS OF FACT
I.

This is an action by Bobby N. Owens 
against his former employer, Texaco, Inc., 
and against his former collective 
b a r g a i n i n g  r e p r e s e n t a t i v e ,  the 
International Association of Machinists 
and A e r o s p a c e  W o r k e r s  and the 
International Association of Machinists 
and Aerospace Workers, Local No. 1792, 
alleging discrimination because of his 
race in violation of Title VII of the 
Civil Rights Act of 1964, and of 42 U.S.C. 
§ 1981. The Plaintiff alleges that he was 
denied classification seniority as a 
carpenter because of his race and as a

2a



result of the denial of his seniority, was 
laid off. The Court has previously 
dismissed all claims against the Unions.

II.
Plaintiff, Bobby N. Owens, is a black 

citizen of the United States residing in 
the City of Beaumont, in the State of 
Texas.

III.
Defendant Texaco is, at all times 

relevant to this action, a corporation 
doing business in Port Neches, Texas. 
Defendant Texaco is an employer within the 
meaning of Title VII.

IV.
Defendant International Association 

of Machinists and Aerospace Workers and 
International Association of Machinists 
and Aerospace Workers Local 1792, 
hereinafter "Local 1792," are labor

3a



organizations subject to the provisions of 
Title VII.

V.
Plaintiff was originally employed by 

Jefferson Chemical Company, a subsidiary 
of Texaco, Inc., in the Operating 
Department of its Port Neches Chemical 
Plant on August 31, 1977, and, along with
other new employees, was placed in the 
janitor classification for training in 
company operations. On September, 16, 
1977, Plaintiff became a controlman on an 
operating unit. Controlmen were
represented for collective bargaining 
purposes by the Oil, Chemical and Atomic 
Workers International Union.

VI.
Plaintiff was selected by Defendant 

Texaco to participate in a carpenter 
training program. The company had an 
established past practice, based on

4a



written agreements between the union local 
and the company, of awarding employees who 
successfully completed the training 
program classification seniority dating 
back to the beginning of the program, to- 
wit:
(a) On August 18, 1971, Defendant Texaco 
entered into an agreement with Local 1792 
indicating that the apprentice trainees in 
that program would have classification 
seniority dating back to the onset of the 
program.
(b) On December 20, 1976, Defendant 
Texaco entered into an agreement with 
Local 1792 indicating that the apprentice 
trainees in that program would have 
classification seniority dating back to 
the onset of the program.
(c) On May 12, 1978, Defendant Texaco 
entered into an agreement with Local 1792 
indicating that the apprentice trainees in

5a



that program would have classification 
seniority dating back to the onset of the 
program.
(d) On May 18, 1982, Defendant Texaco 
entered into an agreement with Pipefitters 
Local Union No. 195 indicating that the 
apprentice trainees in that program would 
have classification seniority dating back 
to the onset of the program.

VII.
On August 18, 1980, Plaintiff entered 

a craft training program as a carpenter 
trainee in the apprentice classification. 
Plaintiff, upon joining the craft, became 
represented by Local 1792. Plaintiff 
successfully completed the training 
program, within 30 months, and was 
promoted to the carpenter classification 
on February 18, 1983. Plaintiff worked in 
this position until he was reduced to the

6a



Labor Pool and then laid off on April 3, 
1983 .

VIII.
While the Plaintiff was still in the 

craft training program, Defendant Texaco 
hired a white journeyman carpenter, R. L. 
Simon, and permanently assigned him 
d i r e c t l y  i n t o  t h e  c a r p e n t e r  
classification. Mr. Simon's carpenter 
classification seniority date is October 
26, 1981.

IX.
On February 1, 1983, Defendant Texaco 

gave Local 1792 notice of its intent to 
lay off approximately fourteen (14) 
employees from the bargaining unit after a 
sixty-day period required by the Labor 
Agreement. This layoff was governed by 
the seniority provisions contained in the 
Labor Agreement.

7a



Under this Agreement, reductions from 
the various craft classifications are made 
in inverse order of classification 
seniority with the exception of black 
employees hired before June 21, 1963, of
which class Plaintiff is not a member. An 
employee reduced from a classification may 
claim any other job to which he/ she is 
entitled by classification seniority 
within a section. Persons reduced from 
classifications and unable to claim other 
classified jobs are placed in the Labor 
Pool. Employees in the Labor Pool are 
laid off in inverse order of plant 
seniority.

Under the provisions of the Labor 
agreement, classification seniority 
commences on the date an employee is 
permanently assigned to a classification, 
provided such assignment extends beyond

8a



120 days. Plant seniority is defined as 
seniority in the bargaining unit.

X.
Retroactive seniority in the craft 

classification had been granted for time 
spent in the training program by virtue of 
individual agreements separately 
negotiated in the past between Defendant 
Texaco and union locals. In September 
1980, Local 1792 originally proposed 
granting retroactive seniority to the four 
trainees it represented in the 1980 
training program (three whites and 
Plaintiff). At that time, Defendant 
Texaco proposed that the trainees must 
complete the program within thirty (30) 
months in order to receive retroactive 
seniority. The Union refused to agree to 
this restriction, which had never been 
included in any of the four previous 
a g r e e m e n t s ,  and, after several

9a



discussions, the last of which occurred in 
January, 1981, the issue was dropped.

On March 7 , 198 2, a new Labor 
Agreement was signed which continued the 
previous seniority provisions. But, the 
Agreement had no provision for trainees to 
obtain craft classification seniority 
while working as a trainee; although, the 
only provision which the Union and 
Defendant Texaco failed to agree upon was 
whether to grant retroactive seniority to 
those trainees who did not complete the 
training program within 30 months.

By a letter dated February 8, 1983, 
Local 1792 again proposed that retroactive 
craft classification seniority be given to 
the craft trainees who had started their 
training program in August 1980. At that 
time, there were only two employees 
represented by Local 1792 in the training 
program, Plaintiff and a white boilermaker

10a



trainee. Local 1792's request was 
discussed by Labor Relations Supervisor D. 
C. Wilson, Personnel Manager D. E. Watson, 
Staff Attorney D. R. Sheil and Employee 
Relations Manager R. Girouard. Mr. Sheil 
advised against making any change in 
seniority at that time in view of the 
prior bargaining impasse over the issue 
and the impending layoff.

XI.
On February 1, 1983, Defendant Texaco 

gave the Union notice of its intent to 
lay-off approximately fourteen (14) 
employees from the bargaining unit.

Shortly thereafter, Plaintiff became 
informed, by way of rumors, that his 
seniority may not include the time he had 
spent in the training program. In an 
effort to protect his job, Plaintiff 
immediately questioned representatives of 
Defendant Texaco concerning the matter.

11a



The representatives assured Plaintiff t h a t  

he would receive retroactive s e n i o r i t y .  

Later Defendant Texaco informed P l a i n t i f f  

that it did not intend t o  grant him 

retroactive seniority, although a l l  

previous trainees had b e e n  g r a n t e d  

retroactive seniority upon s u c c e s s f u l  

completion of the program.
Upon Plaintiff's completion o f  t h e  

carpenter training program, Defendan t  

refused to award Plaintiff c l a s s i f i c a t i o n  

seniority dating from the beginning o f  t h e  

training program (August 18, 1980) b u t  

instead computed seniority with respect t o  

Plaintiff from the date P l a i n t i f f  

completed the program (February 18, 1983).
XII.

Plaintiff repeatedly r e q u e s t e d  t h a t  

Defendant Texaco award him r e t r o a c t i v e  

seniority for the time he had s p e n t  i n  t h e  

training program, as was done for form er

12a



trainees. However, Defendant Texaco 
ignored Plaintiff's demands and refused to 
award him retroactive seniority. As a 
result of the reduction in force, on or 
about April 1983, plaintiff was laid-off 
while R. L. Simon, a white employee who 
was hired as a carpenter on October 28, 
1981, while Plaintiff was in the training 
program, was not laid-off.

XIII.
Defendant Texaco's refusal to award 

the trainees retroactive seniority had a 
direct effect on Plaintiff, the only black 
in the apprentice training program, 
because the white trainees had been with 
the company longer than Plaintiff and did 
not need the retroactive seniority for 
time spent in the program to secure their 
jobs.

XIV.

13a



Thereafter, Plaintiff filed a written 
charge of discrimination, under oath, with 
the Equal Employment Opportunity 
Commission alleging that he was not given 
classification seniority as a carpenter 
and was laid off because of his race. On 
or about August 22, 1983, Plaintiff, Bobby 
N. Owens, received his Notice of Right to 
Sue from the Equal Employment Opportunity 
Commission.

**********
CONCLUSIONS OF LAW

I.
The Court has jurisdiction over the 

subject matter and parties to the suit.

•

HH

The Plaintiff has the burden of
p r ov ing a orima facie case o f
discrimination because of race in
violation of Title VII of the Civil Rights 
Act of 1964. To do this, Plaintiff must

14a



show "actions taken by the employer from 
which one can infer, if such actions 
remain unexplained, that it is more likely 
than not that such actions were 'based on 
a discriminatory criterion illegal under 
the Act.1" Furnco Construction Coro, v.
Waters, 438 U.S. 567, 576 (1978), quoting
International Brotherhood of Teamsters v. 
United States. 431 U.S. 324, 358 (1977).
See also McDonnell Douglas Coro, v. Green, 
411 U.S. 792, 802 (1973).

III.
The Plaintiff may carry the burden of 

persuasion by establishing a prima facie 
case of racial discrimination. Texas 
Department of Community Affairs v. 
Burdine. 450 U.S. 248 (1981); McDonnell

Douglas Corp. v. G r e e n . supra . 
Establishment of a prima facie case in 
effect creates a presumption that the 
employer unlawfully discriminated against

15a



the employee. The Defendant can rebut the 
presumption by producing evidence that its 
employment decisions were motivated by 
legitimate, non-discriminatory reasons. 
Burdine. 450 U.S. at 254; McDonnell
Douglas, supra. In other words, a
d e f e n d a n t  must produce "a non- 
discriminatory explanation for the 
apparently discriminatory results." 
Teamsters. 431 U.S. a 360, n.46.

After the defendant employer meets 
this requirement, the plaintiff must prove 
by a preponderance of the evidence that 
the proffered reason was not the true 
reason for the employment decision, but 
was merely a pretext to hide an illegal, 
discriminatory act. Burdine, 450 U.S. at 
256. See also McDonnell Douglas, 411 U.S. 
at 804. A plaintiff can succeed in doing 
this directly if he shows "...that a 
discriminatory reason more likely

16a



motivated the employer or indirectly by 
showing that the employer's proffered 
explanation is unworthy of credence." 
Burdine. supra.

IV.
Discriminatory treatment u n d e r  42 

U.S.C. § 1981 are measured by the same

standards that apply to discriminatory 
treatment claims under Title V I I .  R iv e ra  

v. City of Wichita Falls r 665 F.2d 531, 

534 n . 4 (5th Cir. 1982). See a l s o  

McWilliams v. Escambia County School  

Board. 658 F.2d 326, 331 (5th C i r .  1981) .

V.

Several witnesses, i n c l u d i n g  

representative of D e f e n d a n t  T e x a c o ,  

testified that there was an e s t a b l i s h e d  

past practice of awarding employees who 

successfully completed the t r a i n i n g  

program classification seniority d a t i n g  

back to the onset of the program. The

17a



witnesses also stated that Defendant
Texaco and Local 1792 had agreed to grant 
the trainees in Plaintiff's program, who 
successfully completed the program, 
retroactive seniority dating back to the 
onset of the program. Plaintiff
justifiably felt that he would receive 
seniority which dated back to the onset of 
the training program when he successfully 
completed it.

VI.
Defendant Texaco wanted to include in 

the Labor A g reement a new and 
unprecedented restriction that trainees 
complete the apprentice training program 
within thirty (30) months, but because of 
the added restriction, the Union refused 
to ratify the Labor Agreement. However, 
on March 7, 1982, some nineteen months
after Plaintiff began the training 
program, a new Labor Agreement was signed

18a



which failed to include any provision for 
retroactive seniority. When Local 1792 
approached Defendant Texaco in February 
1983 , about giving retroactive craft 
classification to the trainees, the 
company refused due to the impending 
layoff. The result was that Plaintiff was 

laid off and R. L. Simon was not.
VII.

In the instant case, Plaintiff 
established a prima facie case of race 
discrimination with regard to the 
defendant's failure to award him 
retroactive seniority. He did so by 

establishing the following: (1) he
belonged to a minority group, (2) he 
successfully completed the training 
program, within thirty months, and was 

qualified for and entitled to retroactive 
seniority for time spent in the program, 
(3) that he was rejected or denied

19a



retroactive seniority despite his 
qualifications, and (4) the denial of 
retroactive seniority was done so that R. 
L. Simon, a white employee, would be 
retained. See McDonnell Douglas, supra.

VIII.
The Defendant Texaco's refusal to 

follow its past pattern and practice of 
awarding trainees retroactive seniority 
classification caused Plaintiff, a black 
employee, to be treated different from 
prior white trainees. In short, Plaintiff 
was denied an employment benefit which had 
previously been granted to white 
employees. Defendant Texaco's actions 
were obviously discriminatory and such 
conduct on the part of Defendant Texaco 
constituted a prima facie case of racial 
discrimination.

20a



IX.
To rebut the Plaintiff's prima facie 

case, Defendant Texaco stated that in 
denying the Union's February 1983 proposal 
they relied on the advice of counsel who 
decided, based on the impending layoff and 
the bargaining impasse, and advised the 
company against making any changes in 
seniority. Then, upon Plaintiff's 
completion of the training program, 
Defendant Texaco denied him retroactive 
seniority. By denying Plaintiff seniority, 
Defendant Texaco permitted R. L. Simon, a 
white employee hired after Plaintiff, to 
retain his job, thus denying Plaintiff 
that which was rightfully his. It is 
obvious that defendant Texaco's subjective 
reasons for denying Plaintiff retroactive 
seniority were more likely than not based 
on a discriminatory criterion illegal 
under the Act and were a mere pretext to

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cover up their discriminatory actions 
against Plaintiff because of his race.

X.
Defendant Texaco's seniority system, 

a system which was negotiated by the 
Company and the Union, has been in 
existence for more than twenty years. 
This seniority system was included in the 
Labor Agreement and was in effect in 1983. 
This system applied to Plaintiff was 
discriminatory.

XI.
It is the purpose of Title VII "...to 

make persons whole for injuries suffered 
on account of unlawful employment 
discrimination. Albemarle Paper Co. v. 
Moody. 422 U.S. 405, 418 (1975). Thus,
plaintiff is entitled to a declaratory 
judgment against the Defendant Texaco as a 
conseguence of their unlawful employment 
practices which violates Title VII of the

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Civil Rights Act of 1964, as amended, and 
42 U.S.C. § 1981.

XII.
Plaintiff, Bobby N. Owens, is 

therefore entitled to relief, i n c l u d i n g  

back pay, reinstatement, a c t u a l  and 

compensatory damages, interest from t h e  

date of judgment, attorneys' f e e s  and 

costs.
IT IS SO ORDERED.
SIGNED AND ENTERED this the 1 s t  day 

of July, 1985.

(Sgd.) Joe J .  F i s h e r  

United States D i s t r i c t  Judge

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BOBBY N. OWENS
Plaintiff-Appellee,
v.

TEXACO,INC., AND THE INTERNATIONAL 
ASSOCIATION OF MACHINISTS AND AEROSPACE 
WORKERS AND THE INTERNATIONAL ASSOCIATION 
OF MACHINISTS AND AEROSPACE WORKERS,
LOCAL 1792,

Defendants,
TEXACO, INC.,

Defendant-Appellant 
No. 86-2551

United States Court Of Appeals 
Fifth Circuit
Oct. 14, 1988

Appeal from the United States District 
Court from the Eastern District of Texas

Before CLARK, Chief Judge, GARZA and
POLITZ, Circuit Judges.

CLARK, Chief Judge:
This appeal arises from the judgment 

of the district court that the seniority 
system which Texaco, Inc. applied to Bobby

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Owens violated Title VII of the Civil 
Rights Act of 19 64, as amended, and 4 2 
U.S.C. §1981. Because the district
court's findings of fact are clearly 
erroneous, we reverse.

Facts
Bobby N. Owens was laid off by 

Texaco, Inc. on April 4, 1983, pursuant to 
the terms of a collective bargaining 
agreement between Texaco and the Inter­
national Association of Machinists, Local 
1792 (IAM) . At that time Owens had the
least seniority of any employee in his 
classification (carpenter), as calculated 
by the method prescribed in the master 
labor agreement. That agreement provided 
that seniority be calculated from the day 
the employee entered his classification. 
Owens argued that he was entitled to 
retroactive seniority for time he had 
spent in a craft training program, since

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such training program time had been 
counted for seniority in the past.

Owens' argument refers to previous 
occasions when retroactive seniority had 
been awarded pursuant to separate, 
negotiated agreements between Texaco and 
some of the unions representing workers at 
Texaco's Neches chemical plant. No such 
agreement had been made between Texaco and 
Owens' union, the IAM, which covered 
Owens' training class. Because no
specific agreement for retroactive senior­
ity existed for Owens, Texaco refused to 
give him credit for his time in the train­
ing program. As a result, R.L. Simon, who 
was hired as a journeyman carpenter after 
Owens entered the training program but 
before Owens completed it, had more 
seniority under the collective bargaining 
agreement. When Owens was laid off, Simon

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was retained. Owens is black; Simon is 
white.

Background
Prior to 1980, three training classes 

were conducted at Texaco's Neches chemical 
plant. For each of these three classes, 
the IAM, which represented carpenters, 
machinists, and boilermakers, negotiated a 
separate contract with Texaco to give 
retroactive seniority dating back to entry 
in the program to trainees who completed 
the class. The Pipefitters Union had a 
similar separate training class contract 
for the labor classifications it repre­
sented. These contracts specifically 
altered the seniority system set out in 
the collective bargaining agreements. One 
union, the International Brotherhood of 
Electrical Workers, never had such a 
contract for its member-trainees.

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When the 1980 training class, of 
which Owens was a member, started, the IAM 
again proposed an agreement for 
retroactive seniority. Texaco made a 
counterproposal which required that 
trainees complete the program within 30 
months in order to receive retroactive 
seniority. The IAM would not agree, and 
no contract concerning retroactive 
seniority for trainees in this class was 
entered. After the layoffs were announced 
in 1983, union officials again proposed a 

seniority agreement for trainees from the 
1980 class. On advice of counsel, Texaco 
refused to contract for a change in the 
seniority procedure at a time when l a y o f f s  

were impending.
IAM filed a grievance on behalf of 

the trainees alleging that Texaco had 
violated the collective bargaining 
agreement by not granting them retroactive

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seniority. The dispute was submitted to 
arbitration. The arbitrator specifically 
determined that Owens had no contractual 
right to retroactive seniority. He also 
f o u n d  no e v i d e n c e  of r a c i a l  
discrimination.

Owens then filed a charge with the 
Equal Employment Opportunity Commission. 
The Commission found no probable cause to 
believe that Owens had been subject to 
discrimination and issued a right to sue 
letter. This action ensued.

Under the evidentiary guidelines 
distilled by the Supreme Court, a 
plaintiff can make out a prima facie case 
of a Title VII violation by establishing:
1) that he belongs to a racial minority;
2) that he was qualified for a particular 
position; 3) that he was not hired or 
retained despite his qualifications; and 
4) that he was replaced by a nonminority.

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See Texas Department of Community Affairs 
V. Burdine, 450 U.S. 248, 253, 202 S.Ct. 
1089, 1094, 67 L.Ed.2d 207, 215 (1981); 
McDonnell Douglas Corp. v. Green, 411 U.S. 
792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 
668, 677 (1973). The district court 
determined that Owens had proved a prima 
facie case of racial discrimination since 
the evidence showed; 1) that he was 
qualified for and entitled to retroactive 
seniority because he had completed the 
training program within 30 months, 2) that 
he was denied seniority despite his 
qualifications; and 3) that this was done 
so that a white employee would be 
retained. The court further found 1) that 
Texaco had an "established past practice" 
of awarding retroactive seniority to 
participants in training programs; 2) that 
Texaco's conduct in refusing to follow 
that past practice was "obviously

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discriminatory," and 3) that Texaco's 
reasons for this action were more likely 
than not based on discriminatory criteria. 
The district court made no mention of the 
arbitrator's interpretation of the 
collective bargaining agreement.

These findings of the district court 
are contrary to the evidence and clearly 
erroneous. The court also erred in 
completely disregarding the arbitral 
decision.

Owens' Right to Retroactive Seniority 
The district court's finding that 

Owens was entitled to retroactive 
seniority ignored the arbitrator's earlier 
i nterpretation of the collective 
bargaining agreement and subsequent 
negotiations between Texaco and the I AM. 
After a full hearing on the issue, the 
arbitrator concluded that:

Indeed, the evidence 
indicates that there was much

31a



negotiation between the company 
and the union in this matter and 
an agreement never was reached 
since both sides were not 
satisfied with the conditions.
There would be no reason for 
those protracted negotiations if 
an agreement was in force or if 
past practice dictated the 
course of action to be taken.
If I were to rule in the Union's 
favor, I would be granting to 
the Union something that the 
company specifically disagreed 
to in negotiations. This
certainty would do violence to 
the collective bargaining 
process.

The district court erred in completely 
disregarding the arbitration award.

An employee may pursue fully both his 
right to arbitration under a collective 
bargaining agreement and his cause of 
action under Title VII, and the findings 
of the arbitrator with regard to dis­
crimination issues are not binding on the 
court. Alexander v. Gardner-Denver Co., 
415 U.S. 35, 94 S .Ct. 1011, 39 L.Ed.2d 147 
(1974). However, under the Steelworkers

32a



Trilogy.1 the arbitral decision is final 
and binding to the extent it resolves 
questions of contractual rights. The 
employee may assert his independent 
statutory rights under Title VII, but the 
arbitrator's interpretation of the 
contract status of the parties is 
controlling. In this instance the 
arbitrator specifically addressed the 
question of Owens' right to retroactive 
seniority under the collective bargaining 
agreement and determined that he had none. 
He further found that the company and the 
union had been unable to agree on the 
terms of a modifying contract and that 
past practice did not control retroactive

1 United Steelworkers of America 
v. American Mfq. Co. . 363 U.S. 564, 80
S.Ct. 1343, 4 L.Ed.2d 1403 (I960); United
Steelworkers of America v. Warrior & Gulf 
Navigation Co. . 363 U.S. 574, 80 S.Ct.
1347 , 4 L . Ed.2 d 1409 (1960); United
Steelworkers of America v. Enterprise 
Wheel & Car Corp.. 363 U.S. 593, 80 S.Ct.
1358, 4 L.Ed.2d 1424 (1960).

33a



seniority. The district court was bound 
by the arbitrator's interpretation of the 
bargaining agreements and status of the 
parties. No new or different evidence was 
presented at trial to support Owens' right 
to retroactive seniority. The court was 
clearly erroneous in concluding that Owens 
was entitled to retroactive seniority.

Past Pattern or Practice
The district court, in its Findings 

of Fact and Conclusions of Law, referred 
several times to Texaco's "past practice" 
of granting retroactive seniority to 
trainees. The court was correct in 
observing that three previous training 
classes were awarded seniority dating back 
to their entry in the program upon 
completion of their training. However, 
this was contrary to seniority provisions 
in the Master Labor Agreement and was 
based upon modifications agreed to in

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separately negotiated agreements between 
the individual unions and Texaco. 
Nothing in the record indicates that 
retroactive seniority was ever given to 
any trainee in the absence of a contract 
to that effect. The fact that specific 
negotiations culminating in a contract 
modification took place for each of the 
previous classes lends great weight to 
Texaco's contention that no past pattern 
of granting seniority without a contract 
ever existed. For example, we note the 
IBEW never negotiated such an agreement 
and trainees represented by that union 
were never given retroactive seniority.

At the time Owens 1 class began 
training, Texaco and I AM had been unable 
to reach agreement regarding credit for 
time in the training program. Therefore, 
the collective bargaining agreement 
controlled seniority, and its provisions

35a



did not include any provision for 
retroactive seniority. The district court 
found as a fact that the layoff was 
governed by those provisions. The
evidence is clear that Texaco had no 
retroactive seniority policy outside the 
separate, negotiated contracts. The 
district court's finding that Owens was 
entitled to such seniority is clearly 
erroneous.

Texaco's Reasons for Refusing 
Retroactive Seniority

The arbitrator's resolution of the 
contractual claim is not dispositive of 
Owens' statutory claims under Title VII. 
A critical fact in this case was whether 
Texaco's decision not to change the 
seniority agreement after the layoff was 
announced was based on discriminatory 
criteria. When the I AM approached Texaco 
in 1983 and offered to agree to Texaco's 
request to limit training course

36a



seniority to those completed in 30 
months, Texaco consulted its house 
counsel, Sheil. Sheil advised Texaco 

that although the company had t h e  r i g h t  

to agree to the proposal a t  t h a t  

juncture, he recommended against i t .  In  

his opinion, changing the seniority l i s t  

after a layoff had been announced would 

create a greater risk of u l t i m a t e  

liability than not changing it.
Sheil testified that when he gave 

that advice, he was unaware of the s t a t u s  

of any particular employees who would be 

affected or of any s u c h  e m p l o y e e s .  

Likewise, Girouard, the Texaco o f f i c i a l  

who made the final d e c i s i o n  w i th  r e g a r d  

to the union proposal, and o t h e r  Texaco 

representatives with whom he d i s c u s s e d  

the issue, testified that they made no 

investigation i n t o  which i n d i v i d u a l  would

37a



be affected nor did they look at the 
existing seniority list.

Texaco management relied on Sheil's 
advice in rejecting the union's proposal 
for retroactive seniority. The district 
court, however, discounted this advice as 
the reason for Texaco's action. 
Obviously the court disagreed with it.

Owens contends that he had actually 
completed the training program within 30 
months, and that this complied with 
Texaco's original proposal to modify the 
seniority provisions of the underlying 
co l le c ti ve  b a r g a i n i n g  agreement. 
Therefore, he contends, Texaco should 
have given him retroactive seniority, and 
that they did not do so in order to keep 
Simon, the white employee, on the job. 
This completely ignores the fact that 
seniority rules were in place under the 
collective bargaining agreement and that

38a



no separate contract to change those 
rules had been made. Whether an employee 
finished a training course in 30 months 
was irrelevant under the seniority system 
provided in the governing collective 
bargaining agreement. Sheil's advice was 
sound, but even if it had not been so, 
there is no evidence in the record that 
Texaco's reliance on it was unreasonable 
or merely a pretext to cover a racial 
motive.

The arbitrator found no evidence of 
racial discrimination in Owens' case. 
Under Gardner-Denver. a court may accord 
the arbitral decision on discrimination 
issues such weight as it considers 
appropriate under the facts and circum­
stances of the case before it. Gardner-
Denver, 415 U.S. at 60 n. 21, 94 S.Ct.
1025 n. 21, 39 L.Ed.2d at 165 n.
A1though the arbitrator's decision was not

39a



controlling, it can properly be con­
sidered in this case. His findings 
reinforce the conclusion that Sheils' 
advice was based on a correct perception 
of the company's position regarding 
existing seniority rights. The district 
court was not warranted in wholly 
ignoring the arbitral decision that no 
racial discrimination existed. The 
district court's conclusion that Texaco's 
reasons for refusing to agree to retro­
active seniority were not legitimate is 
clearly erroneous.

The district court's conclusion that 
Texaco's actions were "obviously discrimi­
natory" is not supported by the evidence. 
The actions to which the court refers is 
the refusal to follow its past pattern and 
practice of awarding trainees retroactive 
seniority. The undisputed evidence that 
the past practices of Texaco and the

40a



unions in negotiating and making col­
lateral agreements regarding retroactive 
seniority varied from class-to-class and 
union-to-union makes it clear there was no 
set pattern with regard to making such 
seniority modifications.

Conclusion
The judgment of the district court 

is reversed and the case is remanded with 
directions to enter judgment for Texaco.

REVERSED and REMANDED.

41a



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 86-2551

BOBBY N. OWENS,
Plaintiff-Appellee, 

versus
TEXACO INC., AND THE 
INTERNATIONAL ASSOCIATION OF 
MACHINISTS AND AEROSPACE WORKERS AND 
THE I N T E R N A T I O N A L  ASSOCIATION OF 
MACHINISTS AND AEROSPACE WORKERS, LOCAL 
1792 ,

Defendants,
TEXACO, INC., Defendant-Appellant.

Appeal from the United States District 
Court for the Eastern District 

of Texas

ON PETITION FOR REHEARING AND SUGGESTION 
FOR REHEARING EN BANC

(Opinion October 14, 1988, 5 Cir. , 198__,
____ F . 2d ____)

(December 6, 1988)

42a



Before CLARK, Chief Judge, GARZA and 
POLITZ, Circuit Judges.
PER CURIAM;
(x) The Petition for Rehearing is DENIED 
and no member of this panel n o r  Judge  in  

regular active service on t h e  Cour t  

having requested that the Court be polled 
on rehearing en banc, (Federal Rules of 
Appellate Procedure and Local Rule 35) 
the Suggestion for Rehearing En Banc i s  

DENIED.

( ) The Petition for Rehearing is DENIED 
and the Court having been polled a t  t h e  

request of one of the members o f  t h e  

Court and a m a j o r i t y  o f  t h e  C i r c u i t  

Judges who are in regular a c t i v e  s e r v i c e  

not having voted in favor of it, (F e d e r a l  

Rules of Appellate Procedure and Local  

Rule 35) the Suggestion for R e h ea r in g  En 

Banc is also DENIED.
( ) A member of the Court in a c t i v e  

service having requested a poll on t h e

43a



reconsideration of this cause en
and a majority of the judges in
service not having voted in favor
rehearing en banc is DENIED.
ENTERED FOR THE COURT:
(Sgd.) Charles Clark______

CHIEF JUDGE

b a n c , 

a c t i v e  

o f  i t ,

44a