Morgan v. Nat'l RailRoad Passenger Corp., 99-15374

• Decision Date: 08 November 2000
• Docket Number: No. 99-15374,99-15374
• Citation: 232 F.3d 1008
• Parties: (9th Cir. 2000) ABNER J. MORGAN, JR., Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, dba Amtrak, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1008

232 F.3d 1008 (9th Cir. 2000)

ABNER J. MORGAN, JR., Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, dba Amtrak, Defendant-Appellee.

No. 99-15374

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 14, 2000

Filed November 8, 2000

[Copyrighted Material Omitted] Pamela Y. Price, Price and Associates, Oakland, California, for the plaintiff-appellant.

Kay M. Long-Martin and Theodora R. Lee, Littler Mendelson, Oakland, California, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California Susan Yvonne Illston, District Judge, Presiding. D.C. No.CV-96-03585-SYI

Before: Donald P. Lay,¹ Dorothy W. Nelson and Sidney R. Thomas, Circuit Judges.

LAY, Circuit Judge:

Abner J. Morgan, Jr. (Morgan) filed suit against National Railroad Passenger Corporation (Amtrak), alleging violations of Title VII of the Civil Rights Act of 1964, as amended in 1991. See 42 U.S.C. S 2000e et seq. (Title VII). Morgan claims that, because of his race, he suffered discrimination and retaliation, and endured a hostile work environment. The district court granted partial summary judgment in favor of Amtrak, holding that Amtrak could not be liable for conduct occurring prior to May 3, 1994. A trial was held on the remaining allegations, and the jury returned a verdict in favor of Amtrak. Morgan now appeals both the ruling on summary judgment and the judgment rendered on the jury verdict.

With regard to the grant of partial summary judgment, Morgan argues the district court erred in limiting the liability time frame. As to the judgment on the jury verdict, Morgan asserts the district court erred in four ways: 1) instructing the jury that evidence of pre-limitations period conduct was for "background" or "context" only; ² excluding certain testimony by Morgan and co-workers regarding the racially hostile environment;2 3) improperly instructing the jury on the hostile environment claim; and 4) imposing improper time limits on the presentation of Morgan's case.³ We find the district court erred in entering judgment as a matter of law. Thus, we reverse and remand for a new trial.

I. BACKGROUND

A) Factual Background

Morgan, an African-American male, alleges that from the beginning of his employment with Amtrak, and throughout his tenure, he was subjected to discriminatory and retaliatory acts and endured a racially hostile work environment. He alleges that the managers at the Oakland Maintenance Yard (the Yard), specifically, Robert Vandenburg, Ray Borge, Jerry Denton, Earl Geske, and Mike Bordenave, primarily perpetrated the acts. As we must, we construe the facts in the light most favorable to Morgan.

1) Incidents Prior To the Limitations Period

Morgan applied for a job with Amtrak in 1990. Although trained and experienced in electrical work, Morgan began working in August 1990 as an "Electrician Helper. " Morgan asserts he believed he was being hired as an electrician, from the beginning he performed the work of an electrician, and that less qualified Caucasians were hired as electricians. Morgan is the only person ever hired as a "helper " at the Yard.

Eventually, Morgan's position was reclassified and his pay brought in line with that of electricians in April 1992.

In February 1991, Vandenburg and Denton instructed Morgan to attend a meeting in Vandenburg's office. Fearing the meeting might lead to disciplinary action because he hadrecently called in sick, Morgan refused to attend without union representation.⁴ Vandenburg and Denton then charged Morgan with a Rule L violation for refusing to follow orders and attend the meeting.⁵ Following a hearing, Morgan was terminated for this violation. Morgan filed a grievance and, in response, Amtrak reinstated him, reducing the termination to a suspension and paying him for all but ten days. Amtrak's Inspector General testified at trial that this ten-day suspension was the most severe discipline imposed on an employee from 1989-1992.

In August of 1991, Morgan made a written request to Amtrak's Los Angeles personnel office asking to participate in Amtrak's apprenticeship program. Within days of filing such request, Vandenburg told Morgan he stood "a snowball's chance in hell of becoming an electrician" at his yard. He never received a written response from Amtrak's Los Angeles office.⁶

In early October 1991, Morgan sent a letter complaining of race discrimination to Amtrak's Equal Employment Office (EEO) and copied it to his congressperson. Morgan never received a formal response to this complaint from Amtrak. OnOctober 16, 1991, Denton gave Morgan a written counseling for violating Rule L because he ignored a direct order to desist while helping an escorting officer pack a co-worker's belongings. Morgan immediately protested this counseling, alleging that it was racially motivated.

In the fall of 1991, Morgan and other employees met with their congresswoman to complain about conditions at the Yard. Shortly after this meeting, on December 13, 1991, Vandenburg placed a letter of counseling in Morgan's file, accusing him of being argumentative and threatening. Early in 1992, the congresswoman contacted Amtrak regarding the employee complaints. In response, Amtrak's Inspector General conducted an investigation of the Yard. Amtrak insists that a list of primary concerns was then drafted and improvements made. At trial, however, Amtrak's EEO representative responsible for the Yard during the relevant time period denied knowledge of the investigation.

On September 17, 1992, Vandenburg and Borge counseled Morgan for alleged absenteeism. Morgan contends that the charged absenteeism included several months of previously approved leave, which had been granted so that he could care for his son.

On September 19, 1992, Mike Fabian, an Amtrak foreman, ordered Morgan to clean up tar on one of the tracks. This work was outside of Morgan's job description. Then, on November 29, 1992, Morgan was again assigned a task outside his craft, specifically, Geske assigned him the task of picking up tie wraps.⁷ Morgan asserts that he picked up as many tie wraps as possible during his shift, but he could not possibly pick up all of them. Regardless, on December 1, 1992, Geske gave Morgan a written counseling for a Rule L violation for failing to pick up all of the tie wraps.

In April 1993, Morgan received another written counseling from Denton for absenteeism. This counseling targeted Morgan's tardiness and attendance on three days -including one excused absence. This counseling occurred despite a recommendation from Amtrak's Inspector General that management should not be strict with regard to minor absenteeism.

In May 1993, Morgan requested, first verbally and then in writing, a one-day leave of absence, in addition to the eight days of vacation for which he was scheduled. Vandenburg denied the requests. Morgan did not appear at work on the day in question. As a result, Morgan was charged with a Rule L violation and suspended for fifteen days. Morgan filed a letter of complaint with Amtrak's EEO office and his union. Eventually, Morgan received back pay and the suspension was ordered expunged from his file.

On May 25, 1993, Morgan asked Vandenburg, in writing, why his name was removed from the list of employees scheduled to be trained on heating, air, and ventilation systems. On that same day Morgan filed a written complaint with Amtrak's EEO office alleging ongoing racial discrimination and retaliation. Then on May 30, 1993, Morgan filed another written complaint with Amtrak's EEO office.

In September 1993, Vandenburg received a letter requesting an investigation of an alleged conversation during which Morgan made improper comments to a union representative. A preliminary investigation confirmed that a conversation had occurred.⁸ Morgan, however, would not discuss the incident with Vandenburg and instead asked for a formal investigation. In October 1993, Morgan was charged with violating Rules F1 and F-3.⁹ After an investigatory hearing, the charges against Morgan were dropped and the incident ordered expunged from his record.

During a training session in October 1993, Vandenburg physically touched Morgan. The contact consisted of Vandenburg approaching from behind, placing his hands on Morgan's shoulders, pushing down, and whispering in his ear. Interpreting the contact as an assault, Morgan reported the incident to the Southern Pacific police, the Oakland police, and filed a written complaint with Amtrak's EEO office. Morgan asserts that Amtrak did not investigate or respond to the situation.

In December 1993, Morgan's scheduled training was cancelled. In January 1994, Morgan wrote a letter to Amtrak's EEO complaining of such cancellation. Morgan asserts that Amtrak never formally responded.

In January 1994, Morgan called in sick to work for one day. When he returned, Borge and other supervisors required him to produce a doctor's note before he could return to work. Despite the fact a note was not required under Amtrak's sick leave policy, when he could not produce a note Morgan lost three days of pay. After filing a grievance, Amtrak paid Morgan for the lost days, excluding the one sick day.

2) Incidents Within the Limitations Period

On September 2, 1994, Morgan was assigned to work on multiple trains. At the end of his shift Morgan had completed work on only one of the trains. Morgan's immediate supervisor spoke with him about not finishing the work and he was subsequently charged with a Rule L violation for failing to complete work assigned to him. Morgan argues that turning over unfinished work to the next shift was not uncommon. There was an investigatory hearing and Morgan was suspended for fifteen days.¹⁰

In October 1994, Morgan was again denied training and complained to Amtrak's EEO office regarding the cancellation of such training. He received no response.

In December 1994,...