Cuffy v. Texaco Refining & Marketing Co.

• Decision Date: 07 April 1988
• Docket Number: Civ. A. No. 84-761 MMS.
• Citation: 684 F. Supp. 87
• Court: U.S. District Court — District of Delaware
• Parties: Thomas M. CUFFY, Plaintiff, v. TEXACO REFINING & MARKETING COMPANY, Defendant.

684 F. Supp. 87

Thomas M. CUFFY, Plaintiff, v. TEXACO REFINING & MARKETING COMPANY, Defendant.

Civ. A. No. 84-761 MMS.

United States District Court, D. Delaware.

April 7, 1988.

COPYRIGHT MATERIAL OMITTED

Theopalis K. Gregory, of Gregory & Gregory, Wilmington, Del., for plaintiff.

David A. Jenkins, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del. (Larry V. Utke, Houston, Texas, of counsel), for defendant.

OPINION

MURRAY M. SCHWARTZ, Chief Judge.

Plaintiff Thomas F. Cuffy sued his employer, Getty Refining & Marketing Co., now Texaco Refining and Marketing Co. ("Texaco")¹ ("the company"), alleging employment discrimination on the basis of his race, color and national origin in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Defendant has filed a motion for partial summary judgment on all claims arising out of plaintiff's alleged violation of company rules and policy on May 4, 1984 while he was on fire watch duty. The Court previously ruled that plaintiff's claims under § 1981 based upon the failure to promote and breach of the EEOC settlement agreement are barred by the statute of limitations. Plaintiff asserts that the three-day suspension he received for his conduct on May 4 violated his right to nondiscriminatory treatment as guaranteed by 42 U.S.C. § 1981 and Title VII, and constituted harassment and retaliation in violation of Section 704(a) of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3.

I. BACKGROUND

Plaintiff, a black male, migrated from Trinidad to the United States in 1968 and since 1969 has worked as a General Service Operator ("GSO") for Texaco at its refinery in Delaware City, Delaware.

Mr. Cuffy applied for a promotion to GSO Supervisor in 1980. When the Company appointed a white employee to that position, one of the supervisors told Mr. Cuffy he was not promoted because he was black. As a result, Mr. Cuffy filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") in February 1981 asserting he was denied the promotion because of his race. Instead of proceeding with litigation on that issue, the parties entered into a settlement agreement which provided that Texaco would consider Mr. Cuffy for the next available position as GSO Supervisor. After a vacancy opened in 1981, Texaco denied Mr. Cuffy's application and appointed a white employee. Mr. Cuffy filed another complaint with the EEOC in June 1982 claiming he was denied the promotion because he was black, and in retaliation for his previous EEOC complaint. Following an investigation, on June 26, 1984 the EEOC issued a determination finding Texaco's reasons for failing to promote Mr. Cuffy to be pretextual and reasonable cause to believe plaintiff's charges. Plaintiff's Appendix at 169. After conciliation attempts failed, the EEOC sent Mr. Cuffy a Right to Sue Letter on October 25, 1984.

During the pendency of the EEOC investigation, Texaco reprimanded and suspended Mr. Cuffy for allegedly neglecting his duties while on fire watch duty on May 4, 1984.² Defendant seeks partial summary judgment on all claims arising out of this incident.

Plaintiff's alleged fire watch violation occurred during a coker turnaround. During a turnaround the coker unit is shut down so that inspection, cleaning and possible repair may take place. Company safety rules and Occupational Safety and Health Administration ("OSHA") regulations require that a person, commonly called a fire watcher, be stationed outside the unit to maintain contact with the workers inside to insure their safety. All parties, including Mr. Cuffy, agree that, until relieved, a fire watcher should not leave his post while workers are inside the unit.

The company assigns GSO's to temporary fire watch duty for events such as the coker turnaround to which Mr. Cuffy was assigned. At the beginning of the assignment, Texaco gave fire watchers instructions on how to perform their job. All of the GSO's assigned to fire watch duty indicated they received oral, but not written instructions. The written guidelines produced by the company indicate they were originally issued "before 2/20/79" and revised June 5, 1984, just one month following the Cuffy incident.

Normally, on a coker turnaround three fire watchers are assigned to each shift, one on the eleventh floor of the unit, one on the fifteenth floor and a rotating relief person. Other GSO's with experience as fire watchers stated that if they needed to leave their post, they would call on the radio or the sound phone on the deck and ask for the relief person or someone else to come up. If a fire watcher needed to urinate while on duty, he would use the portable toilet on his deck so that he could maintain voice contact with the workers inside the unit. During Texaco's investigation of Mr. Cuffy's discipline, Mr. Wilson, local union president, maintained that it was not unusual for fire watchers to leave their posts for short periods of time to relieve themselves, and that it had been done by fire watchers other than Mr. Cuffy.

In addition, Mr. Cuffy maintained it was common practice for fire watchers to leave before the end of their shift, because the relief shift often came in early. Mr. Williams, a GSO, and Mr. Colatriano, an engineer for an outside contractor at Texaco, stated Mr. Cuffy was the only person they knew who left before his relief arrived. In oral argument, counsel for defendant agreed that fire watchers could leave their post before the end of the shift, provided no one was working in the unit and the person stays on the grounds and in radio contact.

On the date in question, Mr. Cuffy was assigned to the 7 P.M. to 7 A.M. shift on the eleventh floor of the coker unit. On the eleventh floor, there are two large openings about 25-30 feet apart, referred to as holes, one into each of the two silo type structures that compose the coker unit. Mr. Cuffy's responsibility as a fire watcher was to maintain visual and voice contact with the workers in each vessel of the unit, and to assist persons working inside the vessels in case of fire or other emergency. Employees of an outside contractor, Catalytic Construction Company, were working inside the coker units on May 4.

According to Mr. Cuffy sometime after 6:00 A.M., he wanted to leave to use the bathroom. One Catalytic employee was inside the unit and another outside. When Mr. Cuffy was unable to contact a relief person, the Catalytic employees agreed it was alright if he left. He asserts that when he returned, no one was in the unit and someone told Mr. Cuffy they were through. Mr. Cuffy then left.

At 6:43 A.M. Mr. Williams, Mr. Cuffy's replacement, and Mr. Colatriano, a safety engineer for Catalytic, arrived on the eleventh floor where Mr. Cuffy was assigned. Mr. Cuffy was not there. Mr. Williams said there were six or seven men working in one section of the unit, and no one in the other section. Mr. Colatriano is not sure if he saw anyone working in either unit, but recalls someone told him there were people working. Mr. Colatriano reported Mr. Cuffy's absence from his post to Texaco management.

Texaco has an independent contractor who maintains a gate log of all vehicles entering and leaving the plant. Mr. Dunn, Mr. Hazel and Mr. Williams were on the shift that replaced Mr. Cuffy. The log indicates that on May 4, 1984, Mr. Dunn came in at 6:02, and Mr. Williams and Mr. Hazel at 6:09. With Mr. Cuffy on the shift ending at 7:00 A.M. were Mr. Diebold and Mr. Baker, as well as the supervising fire inspector Mr. Wharton. The log indicates their departure times as follows: Mr. Wharton, 6:21; Mr. Baker 6:23; and Mr. Cuffy 6:32. No time is indicated for Mr. Diebold.³ Mr. Baker and Mr. Diebold maintained that no work was going on at their fire watch stations at change of shift and they were in the lunchroom, but did not know where Mr. Cuffy was. Mr. Hazel confirmed that Mr. Baker and Mr. Diebold were in the lunchroom, and added that Mr. Cuffy was in the back room. Mr. Baker and Mr. Diebold stated they never left their post without being relieved.

Mr. O'Day, of Texaco's employee relations department, conducted an investigation of the incident and reported the results to Mr. Heagy, manager of employee relations for Texaco's Delaware City plant and EEOC director from June 1980 until 1985. On May 10, 1984, a committee composed of Mr. O'Day, Mr. Heagy, the plant manager, the fire and safety supervisor and the maintenance and construction manager decided that Mr. Cuffy should receive a three-day suspension. Mr. Wharton, who as fire inspector supervised Mr. Cuffy while on fire watch assignment, was not involved in the proceedings or advised of them. If the incident had been reported to him, Mr. Wharton stated he would have noted the incident in the log and monitored the situation, without taking any further action.

Mr. Cuffy filed a grievance appealing the disciplinary action. The union represented him in grievance procedures at the company but declined to represent him at arbitration, based upon inconsistencies it found in Mr. Cuffy's statement and its concern for strict enforcement of safety regulations. Mr. Cuffy proceeded to arbitration on his own, and on February 13, 1985 the arbitrator found in the company's favor, and upheld the discipline.

All Texaco employees mentioned in the above discussion as well as Mr. Colatriano are white, with the exception of Mr. Cuffy. On December 28, 1984 Mr. Cuffy instituted suit in this Court against Texaco alleging discriminatory treatment in violation of 42 U.S.C. § 1981 and Title VII.

II. ANALYSIS

A. Summary Judgment Standard

Under the standard recently enunciated by the United States Supreme Court,

Rule 56(c) mandates the entry of summary judgment, ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex...