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MALARKEY v. TEXACO

May 1, 1992

CATHERINE E. MALARKEY, Plaintiff,
v.
TEXACO, INC., Defendant.



The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 After more than a decade of bitter litigation, plaintiff secured a jury verdict based on a finding that although defendant Texaco, Inc. did not discriminate against her on the basis of age, it did willfully retaliate against her for charging discrimination. The jury found damages in the amount of $ 65,000, which was then doubled to $ 130,000 based on the finding of willfulness. Now before the court is defendant's motion for judgment notwithstanding the verdict, and plaintiff's motions for prejudgment interest, equitable relief and attorneys' fees.

 For the reasons set forth below, defendant's motion is denied, plaintiff's motions for prejudgment interest and equitable relief are granted, and attorneys' fees are awarded in the amounts and to the firms specified in section IV of this opinion.

 I.

 Texaco argues that there was no evidence to support: (1) the jury's finding that Texaco's failure to promote plaintiff to executive secretarial positions ultimately awarded in 1981 to Norma Cavanaugh and in 1983 to Eleonore Coronel resulted from retaliation; (2) the jury's finding of willfulness; and (3) the jury's $ 65,000 damage award. To the contrary, the jury's verdict appears to have been based on a sensible and perceptive evaluation of the evidence.

 Texaco would have me focus only on the two employment decisions at issue, without regard to the ample evidence in the record that by 1981 plaintiff was widely regarded as persona non grata at Texaco because of her complaints about the company's employment practices, and the apparent effect of that view on those two decisions. Plaintiff testified that beginning in 1975, when she worked in the personnel department, she complained to Texaco management about the difficulty she had placing older secretaries within the company and the apparent preference of executives for younger and physically attractive secretaries. Eventually, she wrote a memorandum on the subject. (Tr. 62-69; PX 84) Plaintiff testified that she was then forced out of the personnel department, and into a job as secretary to Robert McCay, a Texaco vice president, at a lower salary grade than she believed was appropriate in view of her grade while she was employed in the personnel office. (Tr. 69-75) Based on plaintiff's testimony and the supporting evidence, the jury could have concluded that after plaintiff's removal from the personnel department she was demoted in pay grade, and began a slide that took her from one of the four highest paid secretaries in the company to one whose salary level lagged behind that of recent hires and who went for long periods with little or no work. (Tr. 57-67, 70-71, 96-98, 102-03, 107, 118-19, 122-23, 403-06, 42934, 591, 918; PX 84, 115)

 In or about March 1980, McCay was promoted to a position that warranted an office on the executive floor at Texaco, and did not choose plaintiff as his secretary. (Tr. 82-84) In 1980, she filed a discrimination charge with the EEOC based on Texaco's failure to promote her to an executive secretarial position, and this lawsuit followed in 1981.

  Harry Matthews, a retired Texaco employee, testified that after McCay's promotion, which occurred in the spring of 1990, he tried to help plaintiff get a job by talking to Carl Davidson, corporate Secretary of Texaco and a person so frequently involved in placing executive secretaries as to be known among Texaco employees as the "queen maker." (Tr. 89, 93) Davidson's role was particularly important because until 1988 Texaco did not have a formal job posting system and instead relied on an informal, word-of-mouth system in which recommendations, and the assistance of managers such as Davidson who knew when jobs were available, were crucial. (Tr. 112-13, 571, 593, 720) Matthews testified that Davidson said he was wasting his time in the effort to help plaintiff, and that Davidson could be of no help then or in the future. (Tr. 430-32) It bears mention that Davidson never denied the conversation with Matthews or gave any alternative description of it. Matthews' account of this emphatic and categorical rejection by Davidson could have been considered by the jury as evidence that Davidson, although according to his testimony he never employed plaintiff, barely knew her and was unacquainted with her conflicts over hiring at Texaco (Tr. 802-03), nonetheless had formed a strong negative view of plaintiff, and that this was based on plaintiff's general reputation as a disloyal employee. Certainly, the evidence at trial suggested no other reason why he would have such keen hostility toward plaintiff. The jury was further justified in concluding that based on this animus he would and did discourage any step that would further her career.

 Plaintiff also asked Davidson to consider her for an executive secretary job, and disclosed to him also that she had complained during her tenure in the personnel office about particular employment practices. The conversation left Davidson "deeply troubled" and he dictated a memorandum about it into a small cassette recorder during his trip home that evening. (Tr. 816-17, 822-23)

 Davidson had directed the hiring of Norma Cavanaugh, the successful candidate for the first job at issue, and used her first as a "floater" or unassigned secretary in the executive department so that she could be kept busy with challenging work and not sit idle. (Tr. 801, 834-35) Notably, he took no step to further plaintiff's career even though he knew of her desire to work as an executive secretary. He testified that he ruled out plaintiff based on negative appraisals from McCay (Tr. 819), but he added that he would not have considered the positive evaluations of plaintiff that appeared in her file even if he had known about them. Although he suggested that he had no need to consider such evaluations because he knew their authors personally (Tr. 844), the jury was free to conclude that his strongly expressed bias against plaintiff operated to her detriment. Davidson was consulted by John Ambler before the latter chose Norma Cavanaugh to be his secretary in mid-1981. (Tr. 802, 830)

 Although Cavanaugh had a college degree which plaintiff lacked, there was a good deal of evidence from which the jury could have concluded that plaintiff was the superior candidate. At the time she was picked to be Ambler's secretary, Mrs. Cavanaugh was at salary grade 8, had been with Texaco for less than six months and had not worked for several years. (PX 257A, Tr. 801) Plaintiff at that time had been with the company for more than 16 years and had worked as an executive secretary at grades 11 and 12.

 On the evidence summarized above, the jury could have found that in view of Texaco's informal procedure for placing secretaries, plaintiff's request to be considered for an executive secretarial position was a sufficient application for the job Norma Cavanaugh received and indeed the only kind of application plaintiff could have made. Moreover, the jury could have found that by the time Norma Cavanaugh was selected as Ambler's secretary, plaintiff's complaints while in the personnel office and her 1980 charge with the EEOC had marked her as an undesirable employee whom Texaco executives would neither promote nor place in a position of responsibility such that her skills could be displayed and promotions earned as a result. Included in that calculus would be the jury's evaluation of the credibility of the witnesses. That finding in turn would support a jury conclusion that but for such retaliatory hostility, plaintiff would have been picked for the job that went to Norma Cavanaugh.

 In September 1981, after plaintiff filed this action, Franklin W. Henley, a supervisor within Texaco Europe sent to Ambler a memorandum suggesting that plaintiff could no longer be trusted with sensitive information in view of the disloyalty to Texaco shown by her lawsuit. (PX 120) Although Ambler apparently disputed the conclusion that plaintiff should thenceforth be treated as a security risk (Tr. 785,927), he did not caution Henley against retaliation or otherwise discourage Henley from expressing the views espoused in his memorandum. (Tr. 786-88)

 There was ample evidence from which the jury could have found that the Henley memorandum was simply the written manifestation of a view that pervaded Texaco after plaintiff filed her lawsuit, apart from whatever damage, if any, the memorandum itself may have caused. Thus, Matthews testified that when he approached one of plaintiff's former supervisors for help in finding her a position, he was told "no, there is nothing he could do." (Tr. 432)

 James Knights, a retired Texaco employee, testified that Henley raised the issue of her lawsuit in 1981 and 1983, and questioned her suitability for sensitive work because of the lawsuit. (Tr. 400-01) He testified that in 1985 he called William Chukas of Texaco's Middle East/Far East Group in an effort to find a job for plaintiff, and was told initially that Chukas would review plaintiff's file. Thereafter, Chukas told Knights that in view of the lawsuit he would not consider plaintiff for a position within his group and advised Knights as follows: "a word to the wise, I wouldn't get your nose in Ms. Malarkey's problems." (Tr. 405) Although that incident followed by two years the retaliation the jury found with respect to the Eleonore Coronel position, it could have been taken by the jury to show the generality and intensity of the feeling within Texaco with respect to plaintiff and her lawsuit. That evidence was echoed in the testimony of other witnesses outside Texaco Europe, where plaintiff had worked. Ralph Mandia testified that he had heard "scuttlebutt" about plaintiff's "problem" and "complaints" in the early or mid-1980's. (Tr. 562-63) It was echoed as well in plaintiff's own testimony to the effect that she was told on more than one occasion that her lawsuit was impeding her career at Texaco. (Tr. 122-23, 955) The people alleged to have made those statements denied doing so (Tr. 914, 935, 985), but it was the jury's prerogative to believe plaintiff.

 Plaintiff's qualifications were at least comparable to those of Eleonore Coronel, if not superior. In July 1983 Coronel was a grade 10 secretary who had been with Texaco for 10 years and had a college degree; plaintiff was a grade 11 secretary who had been with the company for about 20 years, although she did not have a college degree. (PX 257A)

 Peter Bijur, the supervisor who hired Eleonore Coronel to be his secretary in July 1983, denied any recollection of plaintiff or knowledge of her lawsuit at the time he made his decision, and testified that plaintiff was not even among those considered for the job. (Tr. 691-98) Although mere disbelief of testimony by a fact finder is not enough to support an inference that the opposite is true, Moore v. Chesapeake & Ohio Railway, 340 U.S. 573, 576, 95 L. Ed. 547, 71 S. Ct. 428 (1951), there was a good deal more than disbelief to support the jury's finding that Bijur retaliated, if the jury so found. Alternatively, as discussed above, there was also ample evidence from which the jury could infer that pervasive and purposeful retaliation kept plaintiff from being considered for the job, and that had she been considered she would have gotten it. Moreover, the evidence of persistent animus against plaintiff and her continued inability to find work within Texaco, with no evidence that anyone in authority intervened in her behalf, supports the conclusion that Texaco acted willfully.

  Defendant argues that the Sixth Circuit's opinion in Cesaro v. Lakeville Community School Dist., 953 F.2d 252 (6th Cir. 1992) and this court's opinion in Sorlucco v. New York City Police Dep't., 780 F. Supp. 202 (S.D.N.Y. 1992) support a contrary result. They do not. The Cesaro court reversed a finding of Title VII liability because, unlike this case, the findings of the lower court established conclusively that the discrimination, if any, occurred before the process that resulted in the selection of another candidate and at a time when it was still possible for plaintiff to be selected by the final decision maker, a board that had no connection to or knowledge of the discriminatory decision. Cesaro, 953 F.2d at 255. In Sorlucco, the court found that there was no evidence to support the inference that those who decided to discharge plaintiff were aware that she had accused a male police officer of assaulting her. Sorlucco, 780 F. Supp. at 209. Both of those cases differ markedly from the case at hand, where there was evidence to support a finding of widespread antagonism against plaintiff within Texaco that admittedly had reached one decision maker and likely had reached another.

 Defendant insists also that the damage award was without basis. First, defendant requested no greater specificity as to damages than was provided in the verdict form, and should not be heard at this point to complain that it is difficult to see how the jury reached its damage computation. See United States v. Maniktala, 934 F.2d 25, 29-30 (2d Cir. 1991) (failure to object to charge waives alleged defect, absent plain error). Second, defense counsel will recall that the jury's last note before it announced that a verdict had been reached included a request for a calculator, which was provided; this jury did not simply pluck a number from the air. Finally, plaintiff's counsel has provided a perfectly cogent hypothesis supporting the jury's award, based on a comparison of plaintiff's salary and Norma Cavanaugh's as disclosed by Plaintiff's Exhibit 257A, with appropriate percentages added for thrift plan contributions and pension benefits. (Plaintiff's Mem. in Opposition to Defendant's Motion for Judgment, pp. 15-18) That is enough to sustain the result here. See Wickham Contracting Co. v. Local Union No. 3, IBEW, 955 F.2d 831, 840 (2d Cir. 1992) (sustaining jury verdict based on plausible calculation not explicit in jury verdict).

 On this record, I cannot say that a verdict in defendant's favor as to the two positions in question is the only result a reasonable and fair minded fact finder could have reached, or that the paucity of evidence to support either the verdict as to liability or the damage award compels the conclusion that the jury relied on mere surmise and conjecture in reaching it. Those findings would be necessary in order to grant defendant's motion. Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. ...


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