National Railroad Passenger Corp. v. Morgan, Abner, Jr. (06/10/2002)

Questions presented: Did the 9th Circuit correctly hold, in conflict with every other circuit that has decided the question, that a plaintiff who has knowingly allowed the statute of limitations to lapse on an alleged violations of federal anti-discrimination statutes may nevertheless sue on such time-barred claims whenever the incidents within the limitations period are "sufficiently related" to otherwise time-barred claims?

BY ERIN KILLIAN, MEDILL NEWS SERVICE

On Sept. 19, 1992, one of the managers at Amtrak's Oakland, Cal., maintenance yard ordered Abner Morgan to clean up tar on the tracks. Morgan bent over the tracks and pulled the blackening tar.

Two months later, a different manager demanded that Morgan pick up tie wraps. Morgan could not pick them all up during his shift, so he was reproached, and given written counseling for a "Rule L" violation.

Both of these duties were outside of Morgan's job description as an electrician.

Morgan is African-American. His former Amtrak managers are Caucasian.

Morgan's alleged difficulties with Amtrak began immediately after he was hired in August 1990. He contends that he thought he was hired as an electrician, but he was coined a "electrician helper," although he performed electrician duties. Less qualified Caucasians were hired as electricians, Morgan says. Morgan was the only person ever hired at the Yard as a "helper."

In the fall of 1991, Morgan and other employees met with their congresswoman to complain about conditions at the Yard. Following up on the meeting, the congresswoman contacted Amtrak early in 1992, and an investigation of the Yard ensued.

In April 1992, Amtrak promoted Morgan to electrician and raised his pay accordingly.

Morgan says his adverse experiences as an employee at Amtrak compounded over the years.

Morgan depicts the Amtrak environment as hostile to African-Americans. He and his black coworkers heard management utter racial slurs, using "nigger" and "boy" on occasion. Joe George, a former employee, said that one of the managers declared he would kill his daughter before he allowed her to date a black man.

Morgan was suspended numerous times for absenteeism, each occurrence, he says, when he was granted time off. At one point, he was suspended for failing to provide a doctor's note.

In September 1994, Morgan was assigned to work on several trains, but only completed work on one. He was reprimanded, and again charged with a Rule L violation.

In February, 1995, Amtrak management accused Morgan of threatening one of the managers. Morgan said the manager falsely accused him, saying that what really happened is the manager ordered him into his office, but Morgan requested union representation or a co-worker's presence as a witness. When the manager refused, Morgan went home.

A hearing was held to investigate the incident, and on March 3, 1995, Morgan was terminated.

Morgan filed a charge of discrimination and retaliation against Amtrak with the Employment Opportunity Commission (EEOC) on Feb. 27, 1995, after he was suspended but before he was fired. A year-and-a-half later, on July 3, 1996, the EEOC issued Morgan a "Notice of a Right to Sue." Within three months, he did so, under Title VII of the Civil Rights Act of 1964.

Before a suit may be filed under Title VII, a plaintiff must file a complaint with the EEOC within 180 or 300 days. The continuing violations doctrine, however, "allows courts to consider conduct that would ordinarily be time barred 'as long as the untimely incidents represent an ongoing unlawful practice.'" The continuing violations theory holds that it must be unreasonable for a plaintiff to have filed sooner.

Moving for summary judgment, Amtrak contended that they could not be held liable for conduct occurring 300 days before the filing, or before May 3, 1994. The district court granted Amtrak partial summary judgment, stating that "because Morgan believed that he was being discriminated against at the time that all of these acts occurred, it would not be unreasonable to expect that Morgan should have filed an EEOC charge on these acts before the limitations period on these claims ran."

The case went to trial on allegations relating to events after May 3, 1994, and a jury returned a verdict in favor of Amtrak.

The 9th Circuit Court of Appeals unanimously reversed, stating, "this court has never adopted a strict litmus test for application of the continuing violation doctrine; in fact we explicitly rejected such an approach from the Fifth Circuit."

The court went on to say that a plaintiff can show a continuing violation by proving either a series of related acts, one or more of which occurred during the limitations period, or by showing a systematic policy or practice of discrimination within the limitations period.

"In light of the totality of the circumstances, we are satisfied that the pre-limitations conduct at issue in this case is sufficiently related to the post-limitations conduct to invoke the continuing violation doctrine" wrote Judge Donald Lay for the court. "When the pre-limitations events in this case are viewed in the context of the totality of Morgan's relationship with Amtrak, it is apparent that they are part of a series or pattern of discrimination, retaliation, and hostile environment that started nearly contemporaneously with Morgan's employment and continued throughout his tenure."

The 9th Circuit court of Appeals remanded a new trial, admitting all evidence for liability, saying that the "testimony of Morgan and his co-workers goes to the pervasiveness of the conduct at issue."

In remanding for trial, the court voiced a general comment: "We note that one of the main issues in a hostile environment or discrimination case is the pervasiveness of the conduct at issue," wrote Lay. "We further note that, in returning the verdict, the jury expressed concern about the overall environment at the Yard. The jury commented:

'We find the management at the Oakland Yard during the time of Mr. Morgan's employment to have engaged in grossly unprofessional & questionable ethical conduct. Most especially, the EEO office of Amtrak was woefully remiss in following up & supervising its recommendation for procedural changes at the Oakland facility, and their general sincerity questionable.'"

On June 25, 2001, the U.S. Supreme Court granted certiorari in the case.