Wetzel v. Abu-Jamal Reply Brief in Support of Petition for Certiorari
Public Court Documents
January 1, 2011
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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
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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 .............
V)
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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) .........
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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
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. . . 47
. . . 52
. . . 38,50
. . . 50
. . . 47
. . . 41
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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) ...............
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42 U.S.C. § 1981 51
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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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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
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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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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
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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
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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.
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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.
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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,
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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.
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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
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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.
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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 .
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Thomas.
Chevron's medical team has made no examination of
27 Pis' Reply/Opp Class Cert
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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,
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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.
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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.
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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
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by employees less qualified and less senior than he. See, e .q .,
Gonzales Deposition, at 156, 214-17.
30 Pis' Reply/Opp Class Cert
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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.
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- 31 - pls' Reply/Opp Class Cert
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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
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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
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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 ]
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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
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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
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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.
to
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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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.— ^
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, 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
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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
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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,
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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
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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
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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
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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
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
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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
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ARCHIE BAREFIELD, j r ., et al.,
Plaintiffs,
v .
CHEVRON U.S.A. Inc.
Defendant.
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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
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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