Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING SUMMARY JUDGMENT HAND, District Judge. This cause is before the court on the motion for summary judgment filed by defendant Shell Chemical Company, a division of Shell Oil Company (Shell). Shell seeks summary judgment on each claim asserted by plaintiff Joe Neal Womack (Womack) on the ground that there is no genuine issue as to any material fact and that Shell is entitled to judgment as a matter of law. Womack initially brought this action against Shell under the fourteenth amendment to the United States Constitution, 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Womack alleged: [Womack] was not promoted by [Shell] because [Womack] is black and for no other valid reason. Donna Lowery [a white female accountant] was promoted over [Womack] because [Womack] is black and for no other reason. (Complaint ¶ 13, ¶ 15). [Womack] was [in February 1980] denied the training [on Shell’s Product Cost Information System that had been given to his white predecessor, Donna Lowery. This training has been denied [Womack] because he is black and for no other reason. (Complaint ¶ 18 and ¶ 19). The rating system used by [Shell] to grade its professional staff, specifically its accounting staff, is applied to those employees desiring a promotion in such an arbitrary and capricious manner by [Shell] ... so as to amount to no rating system at all, but merely a device to promote some employees and deny promotion to others not based on actual job performance. (Complaint ¶ 22 (emphasis supplied). Shell answered the complaint and asserted defenses under Rule 12(b), Federal Rules of Civil Procedure. On December 23, 1980, this court dismissed (a) all claims under the fourteenth amendment for failure to state a claim upon which relief can be granted, and (b) the promotion claim under 42 U.S.C. § 1981, as barred by the statute of limitations. The court retained for adjudication (a) the promotion claim under Title VII and (b) the Product Cost Information System (PCIS) training claim under both Title VII and 42 U.S.C. § 1981. The court has not previously addressed Womack’s allegation that the rating system utilized by Shell to grade professional accounting staff is “arbitrary and capricious” and “is applied” as “a device” to deny promotion to “some employees.” Although Womack did not allege that the rating system is applied as a device to deny promotion on the basis óf race, the court has liberally construed the allegation within the context of Womack’s other claims of race discrimination and has fully considered the claim herein. Shell seeks summary judgment on the following grounds: (1) This court lacks subject matter jurisdiction over Womack’s Title VII claims (promotion and PCIS) because Womack failed to file a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in connection with the only claimed act of racial discrimination — a poor performance rating given Womack in March 1977; (2) Womack has failed to adduce facts to establish a prima facie case of racial discrimination under either Title VII or § 1981 in connection with his failure to achieve promotion, his delay in receiving training on the Product Cost Information System, or the application of Shell’s rating system; and, (3) Eegardless whether Womack could establish a prima facie case, Shell has adduced undisputed facts articulating legitimate, nondiscriminatory reasons for the promotion and PCIS decisions and Womack has filed to adduce facts to establish that the proffered reasons are a pretext for racial discrimination. The court is cognizant that summary judgment is “especially questionable” in employment discrimination cases, because such eases necessarily involve examining motive and intent. Summary judgment should be used cautiously in such cases and all procedural requirements must be given strict adherence. See Bullard v. OMI Georgia, Inc., 640 F.2d 632, 633-34 (5th Cir. 1981); Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 997 (5th Cir. 1979) The Fifth Circuit has particularly cautioned against summary disposition “on a potentially inadequate factual presentation.” Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 997 (5th Cir. 1979). See also, 6 Moore’s Federal Practice ¶ 56.15[7] (2d ed. 1980). In considering the motion for summary judgment, this court may not adjudicate factual issues. This court’s duty is to determine whether or not there is an issue of fact to be tried. Shell has the burden of clearly establishing that there is no genuine issue of material fact; any doubt as to the existence of a genuine issue of material fact must be resolved against Shell. In reviewing the entire record, this court has viewed the facts together with all underlying inferences drawn from the facts in the light most favorable to Womack. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir. 1979); Bullard v. OMI Georgia, Inc., 640 F.2d 632, 633-34 (5th Cir. 1981); 6 Moore’s Federal Practice ¶ 56.15 (2d ed. 1976). Furthermore, in considering a motion for summary judgment in an employment discrimination case such as this, the court must fully heed the admonition of the Supreme Court in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977): [Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Cognizant of the sensitive nature of Womack’s claims, this court has strictly adhered to all the procedural requirements of summary judgment. The court may not, however, ignore the clear dictates of Rule 56, Federal Rules of Civil Procedure. No civil action is “immune” from summary adjudication. See 6 Moore’s Federal Practice ¶ 56.15[8] at 56-641 (2d ed. 1980); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968) (on summary judgment, defendant successfully demonstrated that the facts were not susceptible of the “interpretation” plaintiff advanced). Even in employment discrimination cases, summary judgment will be granted, if appropriate. See e. g., Gatling v. Atlantic Richfield Co., 577 F.2d 185 (2d Cir. 1978), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 169 (1978); Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 728 n.13 (5th Cir. 1976) (“the fact that the [party opposing summary judgment] vigorously disputed the legal conclusions to be drawn from the facts presented by the [movant] was no bar to the grant of summary judgment”); Anderson v. Viking Pump Div., Houdaille Industries, 545 F.2d 1127 (8th Cir. 1976). Shell is entitled to summary judgment “if everything in the record . . . demonstrates that no genuine issue of material fact exists” and if Shell is entitled to a judgment as a matter of law. Bullard v. OMI Georgia, Inc., 640 F.2d 632, 633-34 (5th Cir. 1981). Although Shell must clearly establish the absence of a genuine issue of material fact, see Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), when confronted with a properly supported motion for summary judgment, Womack “must set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), Federal Rules of Civil Procedure. The Fifth Circuit long ago made clear that this court may not avoid its judicial obligation when presented a properly supported motion for summary judgment: Litigants have no difficulty finding expressions urging courts to have a due regard for a cautious observance of the requirements of a summary judgment or, if they are appellees, they may find expressions that summary judgments are looked upon with favor. Barron & Holtzoff, however, make the pertinent observation: “Cases voicing such sentiments as that courts should be slow to grant summary judgment and that any error should be on the side of caution should be limited to their facts. [Rule 56] itself provides that ‘the judgment sought shall be rendered forthwith if * * * there is no genuine issue as to any material fact and * * the moving party is entitled to a judgment as a matter of law.’ ” 3 Barron & Holtzoff, Federal Practice and Procedure, § 1231. Bruce v. Travelers Insurance Co., 266 F.2d 781, 786-87 (5th Cir. 1959). The court has fully considered the pleadings, depositions and exhibits on file, the affidavits filed in connection with the motion for summary judgment, and the briefs and [oral argument] of counsel for the respective parties, including the Womack Response to summary judgment. The court concludes that there is no genuine issue as to any material fact and that based upon the following Findings of Fact and Conclusions of Law, Shell is entitled to judgment as a matter of law. FINDINGS OF FACT 1. Shell operates a chemical plant in Mobile County, Alabama (Mobile Plant). At all pertinent times, Shell employed more than 15 employees at the Mobile Plant. Womack, a black male, resides in Mobile, Alabama, and has been continuously employed at the Mobile Plant since November 1973 (Womack at 5). 2. Womack alleged that he was not promoted from “Grade 5 Accountant” to “Grade 6 Financial Accountant” because he is black and for no other valid reason (Complaint ¶ 13). On deposition, Womack testified that his claim against Shell “basically comes from the job that I felt that I was qualified for and didn’t get” (Womack at 138). Based upon an exhaustive review of the record, however, the undisputed facts establish that Womack’s claim, if any, arose in 1977, and that his performance appraisals in 1977 and subsequent failure to achieve promotion in 1979 were based upon his job performance. 3. The decision to promote Donna Lowery (effective March 1, 1979) was made by then Mobile Plant Controller Marcel Dastugue (Dastugue Affidavit ¶ 7; Womack at 63-64, 220). On deposition, Womack implicitly admitted that Dastugue’s 1979 promotion decision was not racially motivated; Womack testified that Dastugue reviewed Womack’s employment record and based the promotion decision on Womack’s record of performance (Womack at 64-67), 220): Shell basically has a rating system rating [employees] from one . .. [the top] to five . .. [the worst]. [U]p to 1977 my rating had always been a three. I understood from Shell’s system that three’s and above [one and two] are promotable. At one particular time [1977] my rating dropped from a three to a five and I imagine that was probably the reason [for Dastugue’s promotion decision]. (Womack at 65). Q. [Dastugue] was looking at your record of performance at Shell . .. and he based his opinion, in your opinion, on what your [Womack’s] record of performance was? A. In my opinion; yes, right. (Womack at 67). .In substance, Womack’s promotion claim is that in 1977 his supervisor, A. C. Jacobs (Dastugue’s predecessor as Mobile Plant Controller), was either unable or unwilling to communicate effectively with Womack, a black man, and that the communication failure precipitated disagreements on two work projects. Womack contends that the disagreements, in turn, resulted in an adverse performance appraisal and rating by Jacobs in March-August 1977, which subsequently formed a basis of Datugue’s promotion decision in 1979 (Womack at 76-85, 94-95, 100-101, 112-114, 124-126). 4. Womack did not testify that his 1977 performance appraisals were per se discriminatory. Rather, Womack testified: I believe that [Jacobs’] inability to communicate with me dealt with the fact that I do have an opinion and I am very emphatic on that opinion at times, and because I am very — I am a black person with a very emphatic opinion, I believe that did have an effect on a lot of his actions towards me. (Womack at 83-84). Q. Was [Jacobs] not fair because you were black? A. This communication problem .. . was because I was black and his inability to deal with the fact that I was black. ' [The failure of communication] may have just been inability. (Womack at 121, 123). 5. Although Womack’s testimony establishes that the only alleged discriminatory act occurred in 1977 (Womack’s EEOC charge was filed effective in June 1979), the court has conducted an exhaustive review of the undisputed facts in connection with Womack’s job performance, his failure to achieve promotion in 1979, his delay in receiving training on PCIS, and the performance appraisal and rating system at the Mobile Plant, in order to determine if Womack has been the victim of discrimination. 6. Womack graduated from Mobile County Training School (high school), and in 1972 he received a bachelor of science degree in general business from St. Paul’s College in Lawrenceville, Virginia (Womack at 6). Although Shell employed Womack in November 1973, Shell did not obtain a copy of Womack’s college transcript until October 1976 (McGrath at 43-44; Jacobs at 130-131; Exhibit 20). 7. After graduation from St. Paul’s College, Womack was employed by Metropolitan Life Insurance Company as a salesman for approximately six months. Womack subsequently enlisted in the Marine Corps, reached the rank of platoon commander and received an honorable discharge in November 1973. After discharge from active duty, Womack remained in the Marine Corps Reserve and participated in Reserve training on Saturdays (Womack at 6, 222). 8. Shell employed Womack in the. Financial Department as an Accountant Grade 5 (an entry level position) in November 1973 (Womack at 12). At that time, Womack’s immediate supervisor was Robert G. Brown (Brown), the Financial Representative at the Mobile Plant; Brown had been employed by Shell in various accounting and supervisory positions since June 1954 and had been assigned to the Mobile Plant since July 1968 (Brown Affidavit ¶ 2; Womack at 17). 9. Upon his employment, Shell furnished Womack “A Handbook for Employees of the Mobile Plant” (Employee Handbook) and a pamphlet entitled “What Shell Means to You” (Shell Pamphlet) (McGrath Affidavit ¶¶ 8-9); Exhibit 39; Womack at 11). The Employee Handbook clearly states Shell’s equal opportunity policy and describes the “Educational Reimbursement” program that is available to provide financial assistance to employees who wish to participate in job-related educational programs (Exhibit 38 at 14-16). The Employee Handbook further details an employee complaint procedure whereby an employee may pursue any complaint (including a complaint in connection with a performance appraisal) to (1) his supervisor, (2) the department manager, (3) a grievance committee which consists of one supervisor, the Mobile Plant Employee Relations Manager and two employees chosen by the complainant), and, ultimately, (4) the Mobile Plant Manager (Exhibit 38 at 17-18). 10. The Employee Handbook makes clear that job opportunities are dependent upon employee initiative: PERSONAL DEVELOPMENT Development in its broadest sense means growth. Everyone is interested in growing in his job and, to do so effectively, each employee should plan and carry out his own personal program of self-development. The goals of such a program should be to increase his effectiveness on his present assignments, and to prepare for growth into assignments of greater responsibility. (Exhibit 38 at 18-19). The Shell Pamphlet restates the equal opportunity and educational reimbursement policies and summarizes the employee complaint procedure (Exhibit 39 at 5-9). 11. Shell also posts its equal opportunity policy on employee bulletin boards in the Mobile Plant. The policy advises Shell employees that discrimination complaints may be communicated directly to Shell’s Equal Opportunity Officer (Employee Relations Manager Frank McGrath) (Womack at 8-9; McGrath Affidavit ¶ 10). 12. On deposition, Womack testified that he received a copy of the Employee Handbook. Although Womack did not read the entire handbook, he admitted that he was aware he could communicate employment complaints to his supervisor and that he communicated such a complaint directly to Employee Relations Manager Frank McGrath in connection with his performance Appraisal Report in March 1977. Womack did not, however, inform McGrath that he considered the performance appraisal racially biased (Womack at 8-12). See Finding of Fact ¶ 81 infra. 13. On deposition, Womack described his job as an accountant in the Financial Department at the Mobile Plant: [I] basically handle the capital side of the business. I did the capital reporting. I got involved in month-end accounting, which we call closeout. I got involved in that. I did year-end reporting, and most of the reports that went out of the financial office concerning year-end reporting and relating to capital, I did, and some other reports. I did some auditing and some inventory accounting. That is basically it. [In] the financial office — everything is very repetitive. You do.a lot of work that repeats itself. (Womack at 12, 15). 14. Womack was given general salary increases in May and July 1974 (Exhibit 40). In August 1974, Financial Representative Brown (Womack’s immediate supervisor) transferred from the Mobile Plant to Houston. At that time/A. C. Jacobs (Jacobs) transferred from Shell’s agricultural Division office in California to the Mobile Plant and replaced Brown as both Financial Representative and Womack’s immediate supervisor (Womack at 17-19; Jacobs at 5-7; Brown Affidavit ¶ 2, ¶ 10). 15. When Jacobs became Financial Representative in August 1974, the following personnel were in the Financial Department at the Mobile Plant: (Brown Affidavit ¶ 6; McGrath Affidavit ¶ 11). . 16. Shortly after Jacobs assumed the position of Financial Representative at the Mobile Plant, Womack advised Jacobs that he (Womack) was continuing his job-related education at the University of South Alabama (Jacobs at 220-21; Exhibit 2 at 4). 17. In August 1974, Shell announced its BLADEX expansion at the Mobile Plant. The BLADEX project would ultimately increase the assets of the Mobile Plant from approximately $15 million to $140 million and employment at the Mobile Plant from approximately 72 to 300 employees. The BLADEX project also caused an increase in the volume and complexity of accounting data at the Mobile Plant (Jacobs at 209-10; McGrath Affidavit ¶ 13). In May 1976, construction actually commenced on the BLA-DEX project and E. F. Moran (Financial Representative) transferred to the Mobile Plant to maintain the BLADEX project work in progress financial records. Moran performed substantially all of his work at the construction site (McGrath Affidavit ¶ 13). 18. On December 1, 1974, Womack was given a general salary increase (Exhibit 40); the salary increase reflected the cost of living increase given Mobile Plant personnel on that date (McGrath Affidavit ¶ 14). 19. Shell conducts an annual performance appraisal of each professional employee at the Mobile Plant; a written performance Appraisal Report is prepared (McGrath at 20-21; Exhibit 16). The Mobile Plant Performance Appraisal Program (Exhibit 16) is designed to evaluate an employee’s performance in comparison with the performance of other Shell employees doing similar work. The program also provides the employee with feedback regarding his job performance, his performance strengths and weaknesses and necessary performance improvements; the program thus enables management to assist the employee to improve his future performance. The Performance Appraisal Program further affords management necessary information for immediate employment decisions, such as termination, transfer and promotion, as well as for long-term career decisions. The Performance Appraisal Program affords direct employee input as well as supervisor input. The employee prepares a Personal Review Worksheet which contains specific work-related questions to be answered by the employee (Exhibit 17 at 17-18) and the supervisor prepares a performance Appraisal Report. The supervisor must describe the employee’s duties and must answer specific questions about the employee and the employee’s performance in specified areas. In completing the Appraisal Report, the appraiser must apply defined criteria (Exhibit 17, “Supervisor’s Guide to Employee Performance Assessment and Development”). Following completion of the performance Appraisal Report by the supervisor and the Personal Review Worksheet by the employee, the supervisor conducts a “performance discussion” with the employee. During the performance discussion the employee is given an opportunity to review the Appraisal Report and to discuss fully his work, the results achieved and his performance shortcomings. After completing the Performance Appraisal Program, the employee is assigned a Summary Rating Code (Exhibit 17 at 7; Exhibit 15). The Summary Rating Code rates each employee’s performance on a “1” to “5” scale: 1 Performance substantially exceeds 'normal expectations. (10% of staff rated) 2 Performance exceeds normal expectations. (25% of staff rated) 3 Performance meets normal expectations. 4 Performance is generally acceptable relative to normal expectations, but does not fully meet all expectations. (15% of staff rating — including those rated “5” as defined below) 5 Performance is significantly below normal expectations. (Although there is no separate distribution for this rating, it should be used realistically) (Exhibit 15 at 3; McGrath at 19-20). Following completion of the Appraisal Report and performance discussion, the report is reviewed for consistency by the Mobile Plant Employee Relations Manager and ultimately by the Mobile Plant Manager (Exhibit 16 at 3; McGrath at 13-25). 20. When Employee Relations Manager Frank McGrath assumed his position in 1976, the Performance Appraisal Program at the Mobile Plant was being operated in a competent manner and in accordance with Shell standards (McGrath at 11). On deposition, McGrath emphasized that the program is designed to ensure both employee input and performance appraisal: Shell puts great significance on the fact that the supervisor has to commit his opinions to writing and state those opinions to the employee.... [T]he expectation is. that the employee will communicate — the employee and the supervisor together will communicate together over that data. (McGrath at 24). [The Appraisal Report] is double-checked by the employee. It is double-checked by [Employee Relations Manager] and it’s double-checked by the Plant Manager, so, there are basically three levels of control over the supervisor. (McGrath at 25). McGrath further testified that his review of each Appraisal Report is part of the audit and review function that ensures consistency throughout the Mobile Plant. For example, if an Appraisal Report and Summary Rating vary significantly from a prior appraisal, McGrath determines whether the subsequent appraisal is a true reflection of the employee’s performance (McGrath at 14-16). McGrath reviews specific work product (objective data) to substantiate any subjective elements of the Appraisal Report (McGrath at 16, 57). 21. Although Womack alleged that the Performance Appraisal Program (“rating system”) is arbitrarily and capriciously applied as a device to promote some employees and deny promotions to others, Womack frankly admitted that he had no facts to support that contention. Womack did testify that in his case the rating system was arbitrary and “did not indicate [his] job ability or performance,” but he disputed only one (March 1977) of several performance Appraisal Reports. In lieu of factual support, Womack proffered that he would support his allegations by the testimony of persons with knowledge of the operation of Shell’s Performance Appraisal program; Womack specifically identified Employee Relations Manager McGrath, former Mobile Plant Controller Jacobs, Financial Representative Brown, former Mobile Plant Controller Dastugue, former Financial Representative Moran (no longer employed) and other non-supervisory employees (Womack at 234-43). The depositions of Jacobs and McGrath and the affidavits of Brown and Dastugue do not support Womack’s allegations, however, and Womack has not adduced factual support by affidavit or otherwise (Dastugue Affidavit ¶ 8 and ¶ 9; Brown Affidavit ¶ 4). On the contrary, the undisputed facts demonstrate that Shell’s Performance Appraisal program at the Mobile Plant is based on employee performance and that employee’s are afforded detailed safeguards to ensure appraisal consistency. 22. The Appraisal Report form contains major topic headings followed by the printed criteria the appraiser must consider when conducting the evaluation. The printed portions of the form are followed by blank spaces for the appraiser’s comments. Jacobs prepared Womack’s initial performance Appraisal Report in January 1975 (Jacobs at 10; Exhibit 2). Womack’s January 1975 performance appraisal was based, in part, upon Jacobs’ conversations with Brown (Womack’s immediate supervisor until August 1974). Jacobs called Brown in Houston and Brown advised Jacobs that Womack was an average performer based upon his (Womack’s) limited experience with Shell. The initial Appraisal Report described Womack’s work assignment and evaluated his job performance during the previous year (Jacobs at 17-18; Brown Affidavit ¶¶ 11-12): JOB PERFORMANCE WORK ASSIGNMENT. Specifically, what results were expected ? Mr. Womack is responsible for a number of accounting related functions: Capital Asset Reporting and Record Control, auditing of disbursements, bank account reconciliation, custodian of Petty Cash Fund, various month-end journals and closing reports, and some internal auditing. He is also expected to assume the responsibility for supervision of Financial activities in the absence of the Financial Representative., He was expected to learn the processing mechanics of his areas of responsibilities as well as develop a clear understanding of the reasoning behind the various operations he performed. RESULTS PRODUCED. What was produced ? How did it relate to objectives ? Mr. Womack has obtained a reasonably good understanding of the mechanics of his responsibilities, but has not as yet completely grasped the reasons for or the purpose of the various functions he performs. Mr. Womack also has not demonstrated the level of problem solving skills that we feel is necessary for him to do his job effectively. In summary, Mr. Womack has a good understanding of the routine mechanics of his areas of responsibility, but has not shown the level of professional job understanding that we had expected him to. Since this is Mr. Womack’s first review, we have discounted his lack of growth in problem solving skills and feel that this area will improve with dedicated effort on his part. PERFORMANCE FACTORS JOB KNOWLEDGE. Consider demonstrated understanding of the job assignment and the knowledge required to ac complish it. Are duties, responsibilities, and authority understood ? Mr. Womack has a good understanding of the mechanics of his job but does not clearly understand the logic behind the procedures. PROFESSIONAL KNOWLEDGE. Consider both the depth and breadth of professional knowledge. How well is it applied on the job ? He has had limited technical training in Accounting. He needs to improve his professional knowledge of Accounting and Finance. PROBLEM SOLVING. Consider ability to identify, analyze, and solve problems. Consider the soundness of decisions as reflected in work done. Needs to improve in this area; has some difficulty in identifying and solving problems. PLANNING AND ORGANIZING. Consider how well work is planned and organized for maximum efficiency. Average skills in this area; needs to improve the organization of his work. INTERPERSONAL RELATIONS. Consider effectiveness in dealing with others. Are normal face-to-face contacts handled without antagonizing or alienating others ? Extremely personable individual; gets along well with others. WRITTEN EXPRESSION. Consider written reports, letters, and memoranda. Are they clear, explicit, and well organized ? Were thoughts expressed logically and accurately ? Are communications effective and efficient ? Has had limited occasion to demonstrate his skill in this area. Has a tendency to avoid this method of communication. ORAL EXPRESSION. Consider oral presentations. Are they effective ? Are speech and diction good ? Is expression clear, logical, and convincing? Average — needs to work on developing more effective ways of getting his point across. SELF DEVELOPMENT. Consider reactions to suggestions concerning personal development. What has been accomplished toward the development goals established in the last Performance Discussion ? If goals have not been achieved, indicate why. Mr. Womack is very receptive to constructive criticism and reacts favorably when suggestions for improvement are made. APPRAISAL SUMMARY Summarize greatest strengths. Mr. Womack’s greatest strengths lie in his positive attitude towards his job and his willingness and desire to learn new responsibilities. An additionally strong attribute of Mr. Womack’s is his affable personality and ability to get along with others. Summarize principal job areas where improvement is needed. (1) Improve problem solving skills (2) Attempt to do more written communication to improve skills (3) Improve professional and technical knowledge of Accounting and Finance. If you were filling a position in employee’s area of specialty, would you : If employee has three years or less Shell service, or is considered an inadequate performer, should employment be continued? Yes. Given adequate time to learn, I’m sure Mr. Womack will develop the skills necessary to make a positive contribution. (Exhibit 2 at 3). 23. After Jacobs prepared the performance Appraisal Report, he gave the report to Womack for review and subsequently conducted a “performance discussion” with Womack (Womack at 123-25, 181-82). Following the performance discussion, Jacobs completed the Appraisal Report: PERFORMANCE DISCUSSION Significant items discussed of importance to management: Mr. Womack was concerned with the professional content of his job. It was agreed that many functions that he currently performed were clerically oriented. He was told that in the near future an attempt would be made to redistribute work to relieve him of the redundant clerical work. What are stated career objectives ? Would like to be given opportunity to supervise and direct people. CAREER PLANNING DEVELOPMENT PLANS RECOMMENDED (e. g., special assignments, management or professional study courses, and training activities). Mr. Womack is currently working on his MBA. Would suggest sending him to Houston for a training session. This would give him some exposure to other entry level people and give him perspective on the competition for jobs. Under the heading “Career Planning,” Jacobs noted that promotion for Womack “would depend on a significant improvement in Mr. Womack’s problem-solving skills” (Exhibit 2 at 4). 24. In early May 1975, Jacobs informed Womack that Womack would receive a salary increase effective May 1, 1975. Jacobs’ conference notes reflect: Mr. Womack was quite pleased with the increase and said he felt Shell had been more than fair with him during his first year and one-half with the company. [Womack] said he was looking forward to the expansion [Bladex project at Mobile Plant] and felt this was a tremendous opportunity for him to learn and develope his financial skills. (Exhibit 41). 25. On July 1, 1975, Jacobs promoted Georgia Landrum, a black typist in the Employee Relations and Services Department, to the position of Financial Assistant in the Financial Department (Jacobs at 210; McGrath Affidavit ¶ 16). 26. In August 1975, T. L. Stark (Stark) transferred to the Financial Department in the Mobile Plant from Shell’s Wood River Refinery in Illinois where Stark had been employed as an accountant. Stark assumed a position as Senior Accountant responsible for all cost accounting. In November 1975, Financial Representative Jacobs was promoted and became Mobile Plant Controller. In Early 1976, Stark became supervisor of the accounting area; in that position Stark was Womack’s immediate supervisor (Jacobs at 29-30; Womack Response at 4). Stark was not responsible, however, for the internal auditing program, forecasting or the Bladex construction project (Jacobs at 29- 30). Although Jacobs was Plant Controller, he continued to have significant day-to-day contact with Womack (Jacobs at 30- 31). 27. In late January 1976, Womack prepared a Personal Review Worksheet in connection with his forthcoming second performance appraisal. In accordance with Shell appraisal procedure, Womack was thereby afforded detailed input into the performance appraisal/discussion process (McGrath at 12; Exhibit 17). PERSONAL REVIEW SHEET Q. Describe your job: What are your duties and responsibilities ? A. Although I have other related jobs, 85% of what I do deals with capital information. I have also done more auditing. Q. What specified job related goals have you met during the past review period? A. I have tried to become more of Mobile in-house capital expert. I have also tried to get more involved in the cost accounting side of the house. I have also become more involved in auditing. Q. What part of your job interests you most? A. Gathering the figures and allocating the dollars on the monthly closing wires. Working with the engineers on closed capital projects and keeping them straight on open projects. Q. What part of your job interests you least ? A. [No reply] Q. Are there changes you would like to see made in your job content or the organization of your work group which would help you to be more efficient ? A. Need more cooperation from the engineers to accomplish my job more effectively, especially when it comes to determining the capital assets. (Exhibit 42). 28. On February 10, 1976, Jacobs prepared a performance Appraisal Report regarding Womack’s performance between December 1974 and December 1975: JOB PERFORMANCE WORK ASSIGNMENT. Mr. Womack is primarily responsible for Capital accounting, i. e., controlling AFE’s/[Authority for Expenditure] Capital reporting, both monthly and annual, maintaining detailed asset ledgers and equipment listings. In addition, he is responsible for some month-end closing journals and reports, special projects and some internal audits. RESULTS PRODUCED. As a result of Mr. Womack’s last review, his job was restructured to minimize the clerical aspects of the assignment and expand the professional areas. He has continued to do an adequate job on capital asset control and month-end closing. In his January 1975 review we discussed his ability to more effectively organize his work and his problem solving skills. These two areas continue to be a problem as Joe has not made the progress we expected. However, it should be noted that the current standard by which Mr. Womack has been measured is higher than the previous review due to the fact that we have increased the professional content of his work. Additionally, we would expect an individual who has been on the capital desk for two years to become the in-plant capital expert. Mr. Womack has not as yet obtained this level of job knowledge. Mr. Womack needs to improve his aggressiveness towards his assignments. He has shown some improvement in the results produced when given an auditing assignment. PERFORMANCE FACTORS JOB KNOWLEDGE. Average understanding of assignment, but sometimes he may not clearly understand the proceeds without obtaining clarification. PROFESSIONAL KNOWLEDGE. He has not assimilated a professional level of understanding of Shell’s Capital policies and procedures that he should have. Has been handling Capital for two years now. PROBLEM SOLVING. Joe is slower to recognize problems and/or solutions that we expect for a person with his experience. PLANNING AND ORGANIZING. Needs improvement in this area. INTERPERSONAL RELATIONS. Good. Mr. Womack gets along well with others, but needs to improve his confidence level when dealing with Managers. WRITTEN EXPRESSION. Needs to improve the organization of his thoughts. Also needs to use this method of communication more. ORAL EXPRESSION. Average. Needs to be more confident in expressing his thoughts on a subject. SELF DEVELOPMENT, Takes constructive criticism well, but has not executed a plan to improve organization skills and/or problem solving skills. APPRAISAL SUMMARY Summarize greatest strengths. Excellent attitude. Wants to learn more about his assignment and improve his performance. Gets along well with fellow-workers. Summarize principal job areas where improvement is needed. Needs to improve: (1) oral and written communications; (2) become more organized in his approach to his job; (3) needs to work very hard on improving problem solving abilities; (4) become more assertive. If you were filling a position in employee’s area of specialty, would you : If employee has three years or less Shell service, or is considered an adequate performer, should employment be continued? Yes. Individual needs to show definite improvement in those areas where he is weak. After completing the performance appraisal, Jacobs submitted the report to Womack for review, and conducted a performance discussion with Womack (Womack at 133-134, 181-82). Jacobs thereafter completed the form: PERFORMANCE DISCUSSION Significant items discussed of importance to management: Mr. Womack feels that this review does not clearly reflect the type of individual he really is. He said he plans to do what is necessary to exceed his current rating. He could not accept that’a “3” rating was a very acceptable rating under Shell’s system. We need to build his confidence. What are stated career objectives: Mr. Womack wants very much to become a Manager within Shell. CAREER PLANNING DEVELOPMENT PLANS RECOMMENDED (e. g., special assignments, management or professional study courses, and training activities): Mr. Womack should continue his graduate school training. Send him to some Shell sponsored management courses. (Exhibit 3 at 1-4) In the section entitled “Career Planning,” Jacobs also noted that “Mr. Womack’s performance would have to improve during next review period to warrant” promotion (Exhibit 3 at 4). 29. Several days after the performance discussion between Jacobs and Womack, Womack advised Jacobs that he (Womack) wanted to discuss his performance appraisal with Mobile Plant Manager E. S. (Pinky) Martin, because he (Womack) was dissatisfied with the performance assessment. Jacobs advised Womack that he (Womack) had every right to discuss the performance appraisal with the Plant Manager and that Jacobs would arrange the meeting. Jacobs was not present during the conference between Womack and the Mobile Plant Manager. Plant Manager Martin subsequently advised Jacobs, however, that Martin agreed with Jacobs’ performance appraisal and that Martin had so informed Womack (Jacobs at 222). 30. During February 1976, a new Cost Accounting Manual which included a Capital Procedure section was adopted by the Mobile Plant. The Capital Procedure section had revised instructions for the issuance of Capital AFE’s (Authority for Expenditure) and other Capital procedures. At that time, Jacobs instructed Womack to implement to new procedures (Exhibit 11 at 39-48). 31. On February 17, 1976, Jacobs issued instructions to “Mobile Plant Department Heads” regarding procedures for improvement of closing work orders. The instructions in pertinent part, directed that the Financial Department prepare a report at the end of each month listing all work orders closed during the month and those work orders that were open at the end of the month (Exhibit 11 at 39). A copy of the instructions was forwarded to Womack. Prior to issuing the instructions, Jacobs discussed the concept of the instructions with the Mobile Plant Engineering Manager, Bob Newell, and with Womack whose job it would be to prepare the monthly summary report detailing all work orders closed during the month; Womack would also be required to make the necessary entries in the Capital accounts (Exhibit 11 at 39-48). 32. On March 25, 1976, Jacobs (Mobile Plant Controller) directed the following memorandum to all professional employees under Jacobs’ supervision — Stark (Financial Representative) and Womack (Accountant): I would like to develop a semi management by objectives approach to doing our business. As part of this exercise, I would like each of you to submit to me a list of your on-the-job objectives for the remainder of 1976. These objectives should be rather specific so that we can relate accomplishment to objectives. Secondly, the objectives should be stretch targets so that you have to really strive to obtain them. Once you submit the objectives, we will review and hopefully come to an agreement as to a set of objectives for each of you. (Exhibit 11 at 38). Womack did not respond to Jacobs’ request (Jacobs at 222-23; Exhibit 11 at 10, 13). 33. On April 30, 1976, Jacobs advised Womack that he would receive a salary increase effective May 1,1976, and Womack replied he was pleased with the increase. Following the conference, Jacobs noted: Joe was pleased with the increase and I feel he was satisfied that he was being administered fairly under Shell’s salary guidelines. I also explained to him that salary increases both frequency and amount, are and will be a direct reflection of his contribution. (Exhibit 43). 34. On July 20, 1976, a three-man internal audit team from Shell corporate headquarters in Houston, Texas, (referred to as “Head Office” by Shell personnel) began a detailed audit of the procedures and financial controls used by the Mobile Plant. The audit was the first Head Office audit of the Mobile Plant since 1972 (Exhibit 13 at 3; Jacobs at 224). 35. The internal audit team prepared a detailed “Audit of Mobile Chemical Plant” dated September 1976; the audit made extensive specific findings in connection with deficiencies in capital accounting; i. e., the area for which Womack was primarily responsible. The internal audit team found, for example, calculation of depreciation expense did not always reflect the declining life of the asset where applicable, depreciation expense calculations did not always agree with established rates, depreciation was being charged against assets which were already fully depreciated, debit balances remained in the reserve account for assets which had been retired before they were fully depreciated, and the asset ledger contained small debit and credit balances which were created when assets were retired (Exhibit 13 at 4, 21-22). The audit also set forth specific “follow-up” directions in connection with the deficiencies noted (Exhibit 13 at 8). The deficiencies identified by the internal audit team were not limited to capital accounting; a significant portion of the findings, however, dealt with that area. The Head Office internal audit demonstrated to Jacobs that the problems in the capital accounting area were more severe than he had realized (Jacobs at 276-77). 36. On September 3, 1976, Shell’s General Manager of Chemical Plants, General Manager of Production Finance, Finance Manager of the Agriculture Division, Finance Manager of Chemical Manufacturing and Distribution, General Auditor’s representative, Manager of Chemical Products Auditing and the members of Head Office internal audit team met with the Mobile Plant Manager (Martin), Plant Controller Jacobs and all other Mobile Plant Department Managers and reviewed the audit of the Mobile Plant (Exhibit 13 at 2; Jacobs at 241-42). 37. In early October 1976, Jacobs concluded that the Womack’s repeated performance shortcomings detected since the last performance appraisal (February 1976), indicated a need for an interim performance discussion with Womack (Jacobs at 80, 132-33). At that time, Jacobs sought the advice of Mobile Plant Employee Relations Manager Frank McGrath, who was responsible for monitoring the performance appraisal program (McGrath at 8-9). Jacobs expressed concern that Womack had demonstrated no real progress in relation to items discussed in the 1975 and 1976 performance Appraisal Reports. Jacobs was particularly concerned with Womack’s poor organization and planning, his lack of problem-solving ability, his failure to recognize the purpose for assigned tasks, and his insufficient understanding of capital asset accounting theory. Jacobs advised McGrath that Womack was accomplishing only route, primarily clerical, work and that Womack offered little, if any, professional input. McGrath advised Jacobs to conduct regular organization and planning meetings with Womack and to have Womack prepare an hour-by-hour schedule of the tasks to be performed and the time required to complete each task. Through such steps, McGrath felt Jacobs could help Womack prepare a methodology for approaching specific tasks. McGrath also suggested that Jacobs review Shell’s Capital Manual section by section with Womack until Womack understood the theory behind the capital accounting tasks he was expected to perform (McGrath at 30; Exhibit 22). 38. Although McGrath was aware that Womack had discussed his February 1976 performance Appraisal Report with the Mobile Plant Manager and that Jacobs had questioned Womack’s performance prior to October 1976, McGrath had not become actively involved. After October 1976, McGrath met with Jacobs “periodically” to review Womack’s progress (McGrath at 47-48). McGrath also reviewed each of Womack’s prior performance Appraisal Reports and independently validated Jacobs’ evaluations. The review effort was somewhat difficult because no group outside the Financial Department had a sufficiently close relationship with Womack to afford a broad evaluation. Consequently, McGrath contacted a member of the Head Office internal audit team (Gene Kenyon) since a number of the deficiencies identified in the 1976 Mobile Plant audit were within Womack’s area of responsibility; i. e., capital accounting. In 1975, Kenyon (Consolidated Chemical Accounts at Head Office) had regular telephone dealings with Womack regarding certain accounts. Kenyon advised that Womack had repeatedly made errors in recording transactions even after Kenyon had explained the procedure to Womack step-by-step. Kenyon concluded that Womack was generally unfamiliar with the capital area and that Womack’s work product was “slipshod” (Exhibit 22 at 1-2). 39. On October 13, 1976, in preparation for the interim performance discussion, Jacobs reviewed Womack’s personnel file and prepared a summary of Womack’s work history at Shell: HISTORY OF J. N. WOMACK PURPOSE — To give Joe [Womack] an interim review due to concern about his performance since last formal review given in Feb. 1976. I. Aug. 1974 A. Job content was clerical in nature at that time. B. PLANT ACTIVITY 1. Not a great deal of activity plant only had approx 70 employees. 2. Transactional activity not very heavy we only averaged 400-500 invoices per month. 3. During this period month end reporting requirements where changed requiring significantly more in formation. Joe had a great deal of difficulty in establishing a method to control and report plant costs. We finally had to sit down and work up a control worksheet for him to use to tie out his work and then show him how to do it. Once the activity was highly structured he was able to do a fairly good job of filling in the blanks. II. Jan. 1975 Appraisal of JNW’s [Womack] performance A. At that time the appraisal reflected a lack of understanding by Joe of the reasons and logic for the activities; although he could execute the basic mechanics. B. Noted that his problem solving skills were weak and any changes in routine or abnormal occurrences appeared to baffle him. C. Did not show level of professional job understanding he should have at that time. D. He was told he needed to improve his technical and professional knowledge of accounting. E. Was told he needed to improve his organizational skill — need to organize his job and time more effectively. F. He was told he needed to work on getting his point across more effectively. Frequently appeared not to understand subjects clearly and had difficulty expressing himself. G. It was agreed at the time of the review to try and remove a lot of the clerical responsibilities from Joe and make his job more professional in content. III. March 1976 — Appraisal & Review [February 1976 performance Appraisal Report] A. Joe’s job had been restructured and a lot of the clerical activities were taken away from him. We attempted to make his job more professional. B. The appraisal reflected many of the problems that existed in the previous appraisal. 1. Continuing problem with organizing work, problem solving and work understanding. 2. After over 2 years of working in Capital area, still lacked knowledge of Company Capital policy. 3. Areas requiring improvement were same as previous review; i. e., problem solving, organizational skill, job understanding. Joe was not pleased with his appraisal and requested to discuss subject with [Mobile Plant Manager] Martin, which he was allowed to do. I feel he concluded from that discussion that he needed to work on improving skills. (Exhibit 11 at 15-18). 40. As indicated, Jacobs’ “history” noted that Womack “needed to improve his technical and professional knowledge of accounting.” After further consultation, McGrath and Jacobs concluded that a review of Womack’s educational background in accounting was necessary. In mid-October 1976, Jacobs wrote the Office of the Registrar of St. Paul’s College and requested Womack’s college transcript (McGrath at 43 — 44; Jacobs at 130-31). St. Paul’s College subsequently furnished Shell’s Employee Relations Department with a copy of a transcript; Womack possessed 24 hours accounting credit and earned the following grades: (Exhibit 20; McGrath at 43). 41. In further preparation for the interim performance discussion with Womack, Jacobs also prepared a list of “examples” of problems that Womack had experienced since his February 1976 performance appraisal: Problems with [Womack] since Feb 76 Review 1. Asked Joe for a list of objectives on March 25th (part of review planning). Made second request in June — still don’t have them. 2. Calls from Head Office on late Capital reports. 3. Delays in completing internal audits. 4. Head Office Audit — many of the significant items were in JNW’s [Womack] area of responsibility. See Capital section of audit write up for significant item. 5. Did not show up one month after military leave [on the day] when Jr [Journal] 12 was due. 6. Closed work order information was consistently late during 1st half of year. 7. Aug status of accounts was 2 weeks late and he didn’t have any of it done requiring supervisory staff to do it and report accounts delinquent. I myself end up doing the work on Saturday and Sunday. . .. Joe’s only excuse was that he had a big weekend which was and inexcusable since he was already two weeks late. 8. List of his job responsibilities was asked for on 7/16/76 due date 7/30/76. Reminder given 8/23/76. Still not yet done. This was not a case of work but in my opinion lack of determination on Joe’s part. 9. New AFE. [Authorization for Expenditure] form issued with Cost Manual but JNW did not pursue getting people to use them for months. 10. Azeala City travel procedures need analysis. Joe was given the project due date on 7/27/76. Not done follow up 9/2/76. Still not done. In this instance Joe didn’t say anything to me. It was just as if he didn’t care. 11. Asked to complete Asset Verification by May status. He was late and said everything had been verified later he said he had missed some categories. [Exhibit 11 at 10-14 (summary); Exhibit 11 at 23-48 (details); Jacobs at 134]. 42. On October 20, 1976, Jacobs conducted the interim performance discussion with Womack. Jacobs requested that Womack assess his own progress since the February 1976 performance appraisal. Womack admitted that he had experienced work organization and planning problems, resulting in late or incomplete work. Womack frankly admitted that his technical expertise (capital accounting, account analysis) had not developed as rapidly as he would have liked after two and one half years with Shell. Finally, Womack admitted that his performance in certain job areas was less than acceptable (e. g., status of accounts in capital accounting as reported by the Head Office internal audit team). After Womack completed his assessment, Jacobs suggested that he (Jacobs) and Womack conduct weekly organization and planning sessions, in order to provide ongoing work evaluation and to ensure efficient time allocation. Jacobs and Womack agreed that they would engage in organization and planning sessions at a specified time each Monday morning unless cancelled by mutual consent or by Jacobs (Jacobs at 135-36; Exhibit 11 1-7). 43. Following the interim performance discussion, Jacobs advised Womack’s immediate supervisor (Financial Representative Stark) that he (Jacobs) and Womack had scheduled regular organization and planning sessions; Jacobs requested that Stark keep a record of any careless errors made by Womack to facilitate the ongoing evaluation (Jacobs at 136-37, 139). 44. The following Friday (October 22, 1976), Jacobs and Womack met and outlined the goals to be accomplished at the organization and planning sessions. Jacobs instructed Womack not only to prepare a detailed list of his work activities but also to clean and reorganize his (Womack’s) desk by November 1, 1976 (Exhibit 11 at 49). 45. On Monday, November 1, 1976, Jacobs and Womack had the first organization and planning session. Although Womack had prepared the requested outline of goals to be accomplished, he had not cleaned or reorganized his desk. At the session, Womack and Jacobs agreed that the second weeks’ action item was for [Womack] to take his list of responsibilities and plot them on a calendar. This approach will highlight any free time [Womack] may have and will also function as his plan to get his work completed. He [Womack] agreed that the approach we were taking to help him organize his work more effectively was good. We also talked about the plotting of his time effort as a tool for he and I [Jacobs] to measure his actual performance against his plan. I emphasized to him that the work plan was his plan and that the execution of the plan relied strictly on his personal discipline to accomplish it. (Exhibit 11 at 51). 46. The following Monday (November 8, 1976), Jacobs and Womack participated in another organization and planning meeting. Jacobs and Womack discussed specific task procedures (work in progress “tie outs,” chemical work order analysis, capital asset analysis). After the session Jacobs noted: Joe had his list of job activities completed as agreed they were broken down between monthly required, quarterly, annual and special projects. He had not completed the reorganization of his desk. We agreed that the second weeks meetings action item was for him to take his list of responsibilities and plot them on a calendar for the next four months. This will allow him to pin down his available free time and more effectively monitor his efforts. Once he has developed his plan then we will monitor his execution against his plan. (Jacobs Exhibit 11 at 53). 47. Organization and planning sessions were not held on November 15th or November 22nd because Womack and Jacobs were each on vacation during a portion of that time (Exhibit 11 at 55). On Monday (November 29, 1976), however, Jacobs and Womack had their regular session at which time they: Reviewed [Womack’s] progress in more effectively organizing his work. The concept of displaying on the calendar appears to be helping. However still needs to work on recognizing opportunities to consolidate work to open up large blocks of time for special projects. So far this effort doesn’t appear to have effect any significant change in quantity or quality of work. (Exhibit 11 at 57). 48. At the next weekly session (December 6, 1976), Jacobs and Womack agreed that during December Jacobs should spend time reviewing in detail with Womack his (Womack’s) procedures for processing his work. Although Womack agreed that he would advise Jacobs when he was ready to commence the review, he subsequently failed to do so (Exhibit 11 at 57). 49. No organization and planning sessions were held between December 7, 1976, and January 4, 1977. On December 13th the Financial Department was engaged in closing accounts and on December 20th Jacobs was on vacation (Exhibit 11 at 57). When the weekly reviews had begun in October 1976, Jacobs made it a practice to remind Womack each Monday morning that a session would be held in Jacobs’ office. On Monday, January 10th, Jacobs did not remind Womack that a session was scheduled and Womack failed to appear: [Womack] did not come in for his planning meeting. Furthermore he never approached me [Jacobs] on the detailed review meeting agreed to on 11/29/76.... On 12/14/76 we uncovered a significant error on the allocation of overheads for November business. This is a job responsibility that [Womack] has been performing for over two years. The error was careless and could have been avoided if he had been paying attention.... Again Joe was delinquent on completing his status of accounts. And those that were done were incomplete and unprofessional. This concerns me a great deal since we had discussed this problem in October. Again his lack of performance caused other members of the Finance Dept, as well as other departments unnecessary work. This performance short coming must be corrected. Specifically I had to assist again in trying to reconcile some of the accounts. The major one being Stores Stock Account 5701. (Exhibit 11 at 57; Jacobs at 139-40). 50. On January 12, 1977, Jacobs noted another significant error: Joe [Womack] made a significant error in judgment when he used the wrong report to generate the data for the month end financial reports for Dec 1976. The correction of the error required significant effort to be expend[ed] by myself & Mr. T. L. Stark to get us back on stream. My key concern on this occurrence is not the error itself but the fact that after 2V2 years (7 months with computer output) handling this activity Joe would not recognize he was using the wrong data for his report. Furthermore that he would not really understand till the last minute that he was using incorrect data. His lack of problem solving skills continues to be a significant problem for him. We need to continue to work on this with him. (Exhibit 11 at 64). On January 20, 1977, Jacobs again noted: Joe still needs to work on his planning skills. Reports are still being done at the last minutes in requiring us to telefax the data to Houston — i. e., Initial Assets by Year of Acquisition report. (Exhibit 11 at 66). 51. The weekly organization and planning sessions were to assist Womack in scheduling and completing his work. On October 20, 1976, Womack and Jacobs had agreed that regular interim performance appraisals regarding Womack’s progress would also be helpful. At Womack’s request, Jacobs conducted an interim performance appraisal/discussion on January 24, 1977 (Exhibit 11 at 68). Jacobs explained that Womack “was not making adequate progress in correcting his shortcomings.” Jacobs emphasized that Womack “was still having significant difficulty completing work in a time