Malarkey v. Texaco, Inc.

• Decision Date: 26 January 1993
• Docket Number: D,Nos. 300,327,s. 300
• Citation: 983 F.2d 1204
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 421, 60 Empl. Prac. Dec. P 42,044, 37 Fed. R. Evid. Serv. 1198 Catherine E. MALARKEY, Plaintiff-Appellee-Cross-Appellant, v. TEXACO, INC., Defendant-Appellant-Cross-Appellee. ockets 92-7585, 92-7633.
• Court: U.S. Court of Appeals — Second Circuit

Page 1204

983 F.2d 1204

61 Fair Empl.Prac.Cas. (BNA) 421,

60 Empl. Prac. Dec. P 42,044,

37 Fed. R. Evid. Serv. 1198

Catherine E. MALARKEY, Plaintiff-Appellee-Cross-Appellant, v. TEXACO, INC., Defendant-Appellant-Cross-Appellee.

Nos. 300, 327, Dockets 92-7585, 92-7633.

United States Court of Appeals, Second Circuit.

Argued Aug. 31, 1992.

Decided Jan. 26, 1993.

Paul Brown, New York City (Elizabeth A. Alcorn, Michael G. Steinberg, Whitman & Ransom, of counsel), for defendant-appellant-cross-appellee.

Hilary Richard, New York City (Eric M. Lieberman, Thomas C. Viles, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., of counsel), for plaintiff-appellee-cross-appellant.

Before FEINBERG, NEWMAN and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

This appeal brings before us for the second time a large corporate defendant, employing 1600 people in its Westchester, New York headquarters, and the plaintiff, its 59-year-old secretary, who has been with the company for 29 years. The two parties are locked in the destructive embrace of a bitterly contested employment discrimination case. It is impossible to pinpoint precisely the motivations that have kept this litigation going for over ten years and why this matter, that should long ago have been resolved, continues. Perhaps the employer charged by the secretary with sex and age discrimination felt--to paraphrase "Frankie and Johnny"--that "she was its employee, but she done it wrong." No men were appointed to positions plaintiff pursued, and those women appointed to the secretarial slots plaintiff sought averaged 54 years old. Obviously the employer was not guilty of sex or age discrimination.

                Whether it was on account of these baseless accusations or not, the defendant thereafter retaliated by denying plaintiff a secretarial promotion to which she rightly was entitled.   This act caused her to believe, so the jury was told, that she heard in the workplace, on all sides, the sound of public scorn.   While uncertain of why this litigation has persisted for such a long time, we are firm in our belief that it should now come to an end
                

Defendant Texaco, Inc. appeals and plaintiff Catherine E. Malarkey, its employee, cross-appeals from a judgment of the United States District Court for the Southern District of New York (Mukasey, J.) entered May 19, 1992 following a jury trial on plaintiff's complaint claiming age discrimination under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (1988 & Supp. I 1989, Supp. II 1990) (ADEA). Plaintiff had alleged in a 1981 complaint that the company had discriminated against her on account of her age and sex, and caused her emotional distress by denying her promotions.

FACTS

A. Plaintiff's Employment History

In order to understand this case it is necessary to develop the facts and prior proceedings in some detail. In 1964 Catherine E. Malarkey began working as a secretary for Texaco at position grade 6. She was then 30 years of age and had an impressive background, having served as a secretary to high ranking executives of large corporations. By all accounts she was a commendable employee at Texaco, rose quickly through the secretarial ranks, and attained grade 12 within ten years. Having recently married, she took a six-month unpaid personal leave of absence in May 1974 to attend ailing family and in-laws. At the end of six months she decided not to return to work and asked for an extension of her leave. Despite a company policy not to permit such leaves for longer than six months, Texaco granted her an additional three-month extension.

Upon her return to work in February 1975 there were no grade 12 secretarial positions open. Texaco offered and Malarkey accepted an administrative position in the employment office. In January 1976 she drafted a memorandum to her supervisor questioning Texaco's employment practices, alluding to possible sex and age discrimination by her employer. While working in the employment office, Malarkey found that she was having difficulty satisfactorily placing older women; only young, physically attractive women, she averred, were easily placed. Malarkey asserts that after she wrote this memo, Texaco demoted her from grade 12 to grade 11 and forced her out of the employment office. Texaco responds that she had been told upon return that this position was grade level 11 and that her present pay was greater than when she took the nine-months leave of absence.

Plaintiff accepted an offer the following year to become secretary at grade 11 to Robert McCay, a Texaco vice-president. Malarkey insists she took this position upon being assured that if McCay was satisfied with her work, he would restore her grade 12 rank within six months. When McCay was promoted in 1980 to senior vice-president, he was entitled to select an executive grade 12 secretary to accompany him to the executive suite. In making his choice, McCay passed over plaintiff and chose another secretary, Agnes Brady, with whom he had previously worked.

Shortly after being passed over, Malarkey accepted another grade 11 position as an administrative assistant, asserting she had no alternative, as Texaco advised her there were no other jobs available. Later, in a meeting regarding her career prospects, Carl Davidson, a vice-president with responsibility for filling secretarial positions informed Malarkey she would not be considered for a promotion to executive secretary because of poor performance evaluations from McCay.

Malarkey thereupon filed a complaint with the Equal Employment Opportunity Commission (EEOC) in July 1980 alleging she had been the victim of age and sex discrimination from 1976 to 1980, beginning with her demotion from grade 12 to

                grade 11, and ending when McCay passed her over for the grade 12 executive secretary spot.   Malarkey believes that soon after she brought her EEOC complaint, her actions became a matter of open discussion in management circles, and as a result, she became persona non grata within Texaco.   She asserts she was passed over for several secretarial openings and was effectively excluded from consideration for those grade 12 slots that did become available.   Plaintiff also alleges she was ill-treated by her supervisors, whom she asserts gave her mindless work.   Texaco counters that plaintiff was not considered for promotion only because her performance ratings by various supervisors after 1976 never rose above the barely satisfactory level.   The company further posits that Malarkey's various problems at work were related to the fact that she was absent from work for 900 days (the worst absenteeism record in the company) in the ten years from 1979 to 1989
                

B. Prior Legal Proceedings

A year after plaintiff filed her complaint, the EEOC issued her a "right to sue" notice and dismissed her complaint for lack of probable cause. Malarkey thereupon commenced the present action in district court in August 1981, repeating the substance of the age and sex discrimination claims brought before the EEOC and also alleging a state law tort claim, the intentional infliction of emotional distress. Judge Haight dismissed Malarkey's sex discrimination claims because, as noted, none of the positions she variously sought were given to men and ruled that her age discrimination claims that allegedly arose before 1980 were time-barred under the ADEA. He also declined to exercise pendant jurisdiction over plaintiff's state law tort claims. See Malarkey v. Texaco, Inc., 559 F.Supp. 117 (S.D.N.Y.1982). On appeal, we affirmed. See Malarkey v. Texaco, Inc., 704 F.2d 674 (2d Cir.1983) (per curiam ).

Several years later, as her post-1980 age discrimination claim approached trial, plaintiff sought to amend her complaint to include a cause of action for retaliatory discrimination alleged to have occurred as a result of her 1980 EEOC filing of charges. Judge Mukasey, who had taken over the case when Judge Haight recused himself, issued an order on February 19, 1991 limiting Malarkey's retaliation claims to those occasions when she was denied a promotion by supervisors to whom she had referred in her EEOC charges. Non-promotion retaliation--e.g., being assigned mindless work--and promotion retaliation by Texaco supervisors not named in the EEOC complaint were stricken from the complaint.

Subsequently, we handed down Owens v. New York City Hous. Auth., 934 F.2d 405 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991). As a result of Owens the district court amended its February order and permitted Malarkey to allege and prove retaliatory denials of promotion, irrespective of whether the decisionmakers named in the EEOC charge were involved. The trial court left in place its prohibition on non-promotion retaliation allegations.

In another pre-trial decision, Judge Mukasey ordered the exclusion of evidence relating to six pre-1980 Texaco promotion decisions that Judge Haight had previously dismissed as time-barred, though Judge Haight had left open the possibility that evidence relating to the dismissed claims might be admissible at trial. See Malarkey, 559 F.Supp. at 121. As the judge presiding at the trial of this action, Judge Mukasey again declined to receive evidence of the six pre-1980 promotion decisions, though he allowed plaintiff to introduce "background evidence" pertaining to her performance during the time-barred pre-1980 period, and also permitted her to contest--as denials of promotions--jobs that Texaco refused to consider her for that were lower in grade than the grade 11 level position she held.

Following an eight-day trial, the jury returned a verdict in December 1991 against Malarkey on all of her age discrimination claims. The jury also determined that Texaco engaged in retaliatory discrimination against plaintiff with respect to two promotion decisions for which it awarded her damages in the sum of $65,000 which-- One position was...