to threats to job assignment changes which may be initiated against the Plaintiffs by others in the lower echelons of the company whose loyalty is offended by the disruption caused by the litigation and who may not be aware of the duty of an employer to refrain from retaliation.
The Special Master analyzed the extent of the participation of each applicant for an incentive award. For reasons fully expressed in the Report, the Special Master recommended an award of $ 85,000.00 to Ms. Roberts and $ 50,000 to Mr. Chambers. As to the Plaintiffs Williams, Harris and Hester who joined the litigation after it had commenced, the Special Master analyzed their participation and contribution and concluded that each should receive an Incentive Award of $ 25,000.00.
In considering the application of Objectant Veronica Shinault, the Special Master noted that she had provided valuable assistance to counsel in prosecuting the litigation, however, he also reported that, "one critical element . . . separates Ms. Shinault from the other Plaintiffs. She resigned from Texaco shortly before the commencement of this action by Plaintiffs Roberts and Chambers. Hence, her submission lacks any significant post-litigation burden or risk." For those reasons the Special Master recommended an Incentive Award to Ms. Shinault of $ 2,500.00 rather than the $ 100,000.00 sum requested.
In her objections Ms. Shinault argues that she should receive the same amount recommended for Plaintiffs Williams, Harris and Hester. Ms. Shinault argues that "she too faced a substantial risk as a result of her decision to come forward and serve as a named Plaintiff" because of the possibility that post-employment retaliation could exist in the giving of employment references and the treatment of other items which may arise after an employee has left the company. In this regard she relies on Robinson v. Shell Oil Company, U.S. , 136 L. Ed. 2d 808, 117 S. Ct. 843, 848 (1997) recognizing the threat of post-employment retaliation by giving a poor reference and holding such conduct actionable if retaliatory.
The nature of post-employment retaliation is somewhat different from retaliation experienced on the job by persons filing complaints of discrimination. Co-workers, lower level supervisors, forepersons and the like can and often do engage in retaliation on the job against a co-worker or subordinate who is perceived to be "not a team player," or disrupts the harmony of the organization. Employers try to cultivate loyalty and a team effort. Few employees in a major organization last very long unless they become imbued with a team spirit reflecting a desire to have the organization succeed. On the other hand, post-employment retaliation can only be effected by personnel managers and the like serving at a much higher level in the company, who are well aware of their legal obligations not to retaliate and who are undoubtedly familiar with the Robinson case.
In a large organization such as Texaco the likelihood of illegal retaliation after employment has ceased should be regarded in this day and age as effectively nil. On the other hand, the litigant who remains on the job can expect, as noted earlier, that lower level co-workers and supervisors may perceive his or her actions as disloyalty and evidence of an attitude contrary to the common good. This is a valid distinction perceived by the Special Master. This Court agrees that the distinction between a Plaintiff who joined a lawsuit after leaving the company and after the lawsuit had started, and a Plaintiff who remained throughout the many months during which this hard fought litigation was in the pretrial stage is a valid distinction, which may properly be reflected in a far lower incentive reward.
To the extent that Ms. Shinault now claims that she possessed information of which the other Plaintiffs were not aware, this argument could have been presented to the Special Master at the time of the initial hearing, but was not. The Special Master held an extensive hearing and prepared a complete Report of the results of his hearing. Applicants had a full opportunity to be heard individually and through their counsel if they so desired.
This Court in reviewing objections to the Report of a Special Master does not substitute its own judgment and discretion for that of the Special Master. The only issue is that set forth in Rule 53(e)(2) F.R.Civ.P.: Is the finding clearly erroneous? This Court concludes that it is not. Our Court of Appeals has held that a district judge "must accept the Master's findings of fact unless they are clearly erroneous." Collins v. Foreman, 729 F.2d 108, 118 (2d Cir. 1984).
This Court concludes that the resolution of the amount of the individual incentive payment to be awarded to Ms. Shinault was valid in light of all of the surrounding circumstances, and declines to change it. The Objection to the Report is disapproved and dismissed, and to the extent not previously adopted by the Order of this Court filed July 29, 1997 the entire Special Master's Report annexed hereto is now adopted as the decision and order of this Court.
Dated: White Plains, New York
September 11, 1997