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A Black and White Issue 

A lawsuit alleging racism at Amtrak's Oakland yard has made it to the Supreme Court -- and could affect discrimination cases nationwide

Wednesday, May 1 2002
When Amtrak hired Abner Morgan to do electrical work in its East Bay rail yard in 1990 for $9.69 an hour, the Oakland native figured he'd landed a dream job.

"It was a secure, nice job where I could make some money and learn some things," says Morgan, who had done electrical work in the Air Force. "I thought it would be a job I could retire from."

But within a few months, Morgan began to wonder whether he was being treated differently because he is black. He soon learned that he had been hired as an "electrician helper" and received less pay than everyone else, even though he was doing the same work. He was also the only African-American doing electrical work.

As time passed, Morgan became convinced he was being discriminated against, especially, he says, when he started overhearing white Amtrak supervisors using racial slurs against African-American co-workers. He was continuously disciplined for things white co-workers were not charged with, he says, and repeatedly denied professional training, with management allegedly telling him that he lacked the mental capacity for the work.

"I would get physically sick coming to the yard," he says. "I would always envision what maneuvers I'd have to make to get through an eight-hour day."

In 1995, after he had complained many times about racism at the yard, Morgan was fired for threatening a supervisor, and he filed a discrimination lawsuit against Amtrak. The company denies all allegations of discrimination.

But Morgan's case is different from the approximately 80,000 discrimination complaints filed every year with the Equal Employment Opportunity Commission. After seven years of trial and appeal, Morgan's lawsuit has made it all the way to the U.S. Supreme Court, and legal experts say the verdict could have a substantial impact on how discrimination cases are filed from now on. A decision will be returned by July.

The high court will essentially answer the question: Is there a limit to how far back in time someone can go in making a case for discrimination lawsuits?

"It's about a technical doctrine, but the actual impact of the case is significant," says Joanna Grossman, a law professor at Hofstra Law School in New York.

If the Supreme Court rejects Morgan's argument that he should be able to use long-term evidence of discrimination, "it makes it more likely that there will be discrimination cases for which there is no remedy," Grossman says.

Morgan says he had no idea his case would become entangled for so long in such grand legal issues. "When I first filed the lawsuit, I thought they'd give me a couple bucks and give me my job back. But that was not to happen," Morgan says, shaking his head.

For all of the discrimination Morgan claims he endured in his five years at Amtrak, he says the incident that affected him the most didn't have anything to do with him.

"There was a bomb scare in one of the trains," Morgan says, "and all the employees were cleared to one side. And [the supervisor] picked out an African-American employee and said, 'Here's a flashlight, you're going to look for a bomb.'

"That was the first time I knew that it wasn't just me," Morgan says. "Eddie's the type that will go with the program. But I said, 'Wait, he's no bomb expert. What is Amtrak going to give Eddie's family if he blows up?' [The supervisor] told me to shut up."

Morgan began formally complaining about the alleged racial discrimination in October 1991, when he wrote a letter to the company's Equal Employment Opportunity (EEO) office alleging that he had been told by a supervisor that he stood a "snowball's chance in hell" of entering an apprenticeship program. A few days later, Morgan was disciplined by management for insubordinate behavior. Amtrak never formally responded to the complaint.

In Morgan's court documents, several Amtrak employees also allege that the Oakland yard was a racist environment, with Amtrak supervisors frequently using racial slurs like "shuffle-butt niggers" to refer to African-American employees. One employee says he found racist notes and pictures in his locker.

Some of Morgan's frequent complaints to Amtrak's EEO were investigated; others received no response. In the meantime, Morgan continued to rack up disciplinary charges for things like taking extra sick days, not finishing his work, and being insubordinate. In court files, a psychological profile solicited from Amtrak states that Morgan is "prone to employ fluctuating and erratic interpersonal skills" and "readily takes issue with authority figures through oppositional behaviors." But Morgan contends that white employees who did the same things did not face similar disciplinary actions.

Morgan's lawsuit, however, turns on a technical legal doctrine involving time limits. Though Morgan says he faced discrimination for the five years he worked at the Oakland yard, he was only allowed to present evidence that occurred in the 300 days before he filed his claim.

Under federal and state laws, employees who believe they are victims of discrimination must file a claim with the EEOC within 300 days in order to pursue a lawsuit. That time frame becomes a set window for looking at discrimination in court.

There is an exception to this rule -- called the "continuing violations doctrine" -- which acknowledges a pattern of discrimination, but because district courts have interpreted that policy in different ways, it is unclear when and how it should be applied. The Supreme Court took Morgan's case to settle the question.

Pamela Price, Morgan's attorney, asserts that historical events help paint a picture of long-term discrimination. Price says that there was a laundry list of allegedly discriminatory incidents and that she lined up more than 30 witnesses to testify about the supposed racist climate at the rail yard, but because of the 300-day limit, the judge only allowed the jury to hear portions of that evidence, which the judge then told them to disregard.

Amtrak attorneys say, however, that regardless of patterns of discrimination at the Oakland yard -- which they deny -- Morgan should have filed a complaint much sooner.

"The fact that someone can wait years before they go to the EEOC is where we have a problem," says Amtrak attorney Roy Englert. "The EEOC is supposed to bring reconciliation in the workplace."

The jury at Morgan's original trial found that though Amtrak had engaged in "unprofessional" behavior, Morgan had not suffered from discrimination. But when Morgan took the case to the 9th Circuit Court of Appeals, the court found that some evidence omitted or disregarded during the trial should have been included.

Amtrak then took the case to the Supreme Court.

The verdict in this case will determine how and when people file discrimination cases. "Its significance is a practical matter," says Professor Joe Grodin of UC Hastings. "[If the time limit is upheld, then] rather than someone who is being harassed saying to himself, 'Oh I'll just stick it out and see what happens' until it gets so bad they file a lawsuit, we're going to see more claims filed."

It is early April, and Morgan is sitting in his attorney's conference room wearing a bright yellow shirt, flipping through photos taken while his case was argued before the high court. Several of the pictures show Morgan, his wife, family, and Price grinning from the steps of the courthouse.

The Supreme Court decision could come back any day, and Morgan, who is getting periodic electrician work through a local union, has spent the past few months taking care of his disabled son and anxiously waiting. If the Supreme Court finds in his favor, Morgan will get a new trial.

If the court finds against him, Morgan still goes back to trial on technical issues.

"You know, I had a dream that they gave me my job back," Morgan says. "And I was out on the yard and people were giving me high-fives. It was a trippy dream. But I was back on the job and everyone was saying, 'Man, he kept on fighting!'

"If they gave me my job back, I'd go back. I'd go back to show some of them people that you don't have to do it with a clenched fist, that you can go through the process and the process works."

About The Author

Bernice Yeung


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