Markey v. Tenneco Oil Co.

• Decision Date: 21 October 1977
• Docket Number: Civ. A. No. 75-1583.
• Citation: 439 F. Supp. 219
• Parties: Dempsey J. MARKEY et al. v. TENNECO OIL COMPANY.
• Court: U.S. District Court — Eastern District of Louisiana

439 F. Supp. 219

Dempsey J. MARKEY et al. v. TENNECO OIL COMPANY.

Civ. A. No. 75-1583.

United States District Court, E. D. Louisiana.

October 21, 1977.

COPYRIGHT MATERIAL OMITTED

Joseph W. Thomas, Okla Jones, II, New Orleans, La., for plaintiffs.

David E. Walker, Alvin J. Bordelon, Jr., Kenneth P. Carter, Monroe & Lemann, New Orleans, La., for defendant.

OPINION

SEAR, District Judge:

This is an individual and class action brought under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (better known and hereinafter referred to as Title VII) and 42 U.S.C. § 1981 for damages and injunctive relief. Plaintiffs allege that the Tenneco Oil Company refinery located in Chalmette, Louisiana discriminates against blacks in its employment practices, more particularly in the areas of hiring, promotion, pay, and discharge.

On April 12, 1976, Edward J. Boyle, Sr., United States District Judge who was temporarily handling the case during the vacancy in this section of Court certified the case as a class action, the class being composed of:

"I. All black applicants for employment at the Tenneco Oil Company Refinery in Chalmette, Louisiana, from July 2, 1965 to the date of the final order of this Court;

II. All blacks who were, are and will be employees of Tenneco Refinery in Chalmette, Louisiana, from July 2, 1965 to the date of the final order of this Court."¹

The trial of the case was conducted over a four day period beginning on March 7, 1977. At the conclusion of all the evidence, the matter was submitted, and both sides were given 30 days to submit suggested findings of fact and conclusions of law and other legal memoranda. This period was subsequently extended for an additional two weeks upon a joint motion of counsel.

I. FACTUAL BACKGROUND

In 1955 Tenneco Oil Company purchased an oil refinery located in the city of Chalmette in St. Bernard Parish, Louisiana. The refinery operates on a continuous basis, processing an average of 90,000 barrels of crude oil a day, and manufacturing a variety of petroleum products.

The refinery is organized into four separate departments. The Operations Department, the largest and most essential department, is charged with the operation of eight interrelated complexes, each composed of one or more process and refining units. The Maintenance Department provides labor, mechanical services and warehousing for the refinery at large and the Operations Department in particular. The Administrative Department provides personnel, accounting, fiscal, and clerical services. Lastly, the Technical Department furnishes engineering and other technical support to the Operations Department.

All nonsupervisory personnel in the Maintenance and Operations Departments, with the exception of nine Operations employees who work on the Tenneco wharf,² are represented by the Oil, Chemical and Atomic Workers International Union. Also included are ten nonsupervisory employees in the Laboratory, a division of the Technical Department. Since 1964 a series of collective bargaining agreements between the O.C.A.W. and Tenneco have governed all terms and conditions of employment of union members.³

II. INDIVIDUAL CLAIM

The named plaintiff in this case, Dempsey J. Markey, alleges that he was discharged from his employment at the refinery because of his race. Markey was hired by Tenneco into an entry-level position as a laborer in the Maintenance Department on May 23, 1974. Pursuant to the collective bargaining agreement between the O.C.A.W and Tenneco, all new employees must successfully complete a 120 day probationary period before acquiring plant seniority with its concomitant rights and benefits. During this period the employee is "on trial". Towards the end of the period, the employee is rated by his supervisor, and may be discharged if his performance has been unsatisfactory. Markey admitted that he was aware that his status with Tenneco was probationary and that his job performance was being closely scrutinized for the purpose of the ultimate evaluation.

By Markey's own account he had worked in the Maintenance Department for two weeks to a month when he was temporarily transferred to the Laboratory to work vacation relief as a "lab sampler". On or about July 10, 1974 Markey drove a Cushman motor cart to collect samples from the tanks. He parked the cart next to the railroad tracks and climbed up to the tanks. Before he returned, a train came down the tracks, catching and dragging the Cushman cart. The cart was badly damaged. Markey contended that he had often parked the cart there without incident, and that he had observed other employees park the cart in the same spot. Nonetheless, he made no protest when a supervisory panel determined he had been negligent and suspended him from work for three days.

A second incident occurred on August 20, 1974 when Markey was asked to work overtime in order to help clean up a crude oil spill. Markey reported to the site of the spill at the end of his regular shift, but instead of beginning work, told the supervisor he was sick and went home. Markey saw no doctor, however, and reported for work on time the next day.

On August 21, 1974, supervisor Hudson filled out a rating sheet on Markey, evaluating his performance on thirteen different job functions on a scale from one to five. Markey scored no higher than a three on any of the job functions. Additionally, the supervisor placed Markey in the lower third of company employees overall, and did not recommend that Markey's employment with Tenneco be continued.

On September 8, 1974 Markey was summoned to the office of W. G. Pollard, where, in a meeting with Pollard and Paul Floth, the administrative manager of the Tenneco plant, Markey was told he was fired. Floth testified at trial that the decision to fire Markey was based on the rating sheet submitted by supervisor Hudson, and the two incidents which had occurred during Markey's probationary period.

On September 11, 1974 Markey filed a charge with the Equal Employment Opportunity Commission. The charge stated that Markey "believed" he had been discharged from Tenneco because of his race. Plaintiff made no other charge of discrimination, and indeed at trial testified that he had not been discriminated against in any other way in connection with his employment at Tenneco. The EEOC found in a Determination dated February 25, 1975, that "the evidence does not support the charge" and that there was "not reasonable cause to believe that Title VII of the Civil Rights Act ... has been violated in the manner alleged."

The Fifth Circuit has recently elaborated upon the respective burdens to be borne by both plaintiff and defendant when trying an individual claim under Title VII in Turner v. Texas Instruments, Inc.⁴ There, the Court stated:

"The plaintiff must present a prima facie case of racial discrimination; the employer then has the burden of proving, by a preponderance of the evidence, that legitimate, nondiscriminatory reasons existed to support his action; and the plaintiff then has the burden of proving by a preponderance that the employer's articulated reason was a pretext for discrimination."⁵

It is questionable in this case whether Markey has even gone so far as to present a prima facie case of discrimination. A plaintiff's mere suspicion that he has been discriminated against, is not sufficient evidence to support an individual charge under Title VII.⁶ Markey did not demonstrate that the position he vacated was filled by a white person. In fact, Paul Floth testified that Markey had been replaced by a black. Markey simply argued that he disagreed with the supervisor's ratings, and that he felt he had not been at fault in the two incidents which occurred during his tenure with Tenneco.

In regard to the first incident, Markey testified that in parking the Cushman cart close to the railroad tracks, he was doing as he had seen his fellow employees ("lab samplers") do many times. However, Markey did not demonstrate that this practice, later labelled by a supervisory panel as negligent, was officially condoned by Tenneco, or even that supervisory personnel were aware of the practice. Markey could not point to a single instance in which any other employee, black or white, had caused similar damage to company property. Moreover, at the time of the incident, although Markey was disciplined with a three day suspension, Markey made no protest that his treatment was unfair. Under these circumstances, and particularly because plaintiff could not isolate any instance in which a white employee was treated differently for a similar offense, I find that Tenneco had good cause to consider this incident against the plaintiff in determining not to retain him at the end of the probationary period. That such an incident would reflect poorly upon an employee's capabilities is a facially neutral result, and plaintiff has not shown by any evidence that the incident furnished a mere pretext for the exercise of race discrimination against him.⁷

As to the second incident when Markey refused to work overtime claiming that he was ill, I find that this also was properly considered against the plaintiff in evaluating his job performance. Markey had been told at the outset of his employment that he would be required on occasion to work overtime. On August 20, 1974 he was asked to do so. The task was to be an unpleasant, dirty one—the cleaning of an oil spill. Markey claimed that he was ill and could not do the work. It was the opinion of his supervisor that Markey was not ill, but rather that he merely wished to avoid the disagreeable assignment. This opinion was supported by certain objective facts: Markey worked his entire normal shift on the day he was asked to work overtime and reported on time for work the following day also working that entire day; Markey did not see a doctor for his illness. Under these circumstances I find that the assumption of the supervisor...