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A black Amtrak engineer who was fired for abusing travel privileges can pursue his discrimination claim because white employees apparently violate the National Railroad Passenger Corp.’s rules of worker conduct with impunity, a federal judge in Albany, N.Y., has ruled. Northern District of New York Judge Lawrence E. Kahn said in Turner v. National Railroad Passenger Corporation, a/k/a Amtrak, 99-CV-0652, that a reasonable jury could infer that the proffered reason for firing the plaintiff was a pretext for unlawful discrimination. In addition, Kahn adopted the reasoning of a Tennessee court and held that plaintiffs invoking a � 1981 claim for discriminatory hiring are subject to a three-year statute of limitations while those alleging discriminatory termination of employment are governed by a four-year statute of limitations. The case involves Larry J. Turner, who was the only black engineer in the Albany area. Amtrak employees are afforded travel privileges that allow them and dependents to ride for free. In 1995, an Amtrak manager at the Albany-Rensselaer station noticed that a passenger list included Turner for a trip to South Carolina. Since Turner was working at the time, it was evident that the pass was being used by someone else, in violation of Amtrak’s rules of employee conduct. An investigation allegedly revealed three instances of unauthorized travel involving Turner, and the engineer was ultimately fired Jan. 26, 1996, for violating ethics rules and defrauding Amtrak of more than $1,300 in potential revenues. Turner responded with a lawsuit claiming race-based retaliation for expressing his concerns about discriminatory hiring practices. Before Judge Kahn were various summary judgment motions, including one based on the statute of limitations. Kahn noted that 42 U.S.C � 1981, which is rooted in the Civil Rights Act of 1870, does not contain its own statute of limitations. Kahn held that the four-year statute of limitations contained in 28 U.S.C. �1658 governs, and that Turner’s case is not time-barred by state time restrictions. “This court finds that by applying Section 1658 to plaintiff’s Section 1981 claims as the fall back statute of limitations prescribed by Congress, Congress’ desire to develop uniformity among federal claims is furthered by establishing what law governs the cause of action,” Kahn said. Judge Kahn embraced the reasoning of Miller v. Federal Express Corp., 56 F.Supp2d 955 (W.D. Tenn., 1999) and held that a three-year restriction applies to discriminatory hiring cases, but a four-year statute of limitations governs discriminatory termination matters. Turner’s complaint involves an allegation of discriminatory termination, and therefore is entitled to the four-year time period, Kahn found. RACIAL EPITHETS The court then turned to the crux of the complaint. Turner contends that a hostile work environment existed and alleged that racial epithets were routinely used in the workplace and tolerated by management. Some of the remarks were in reference to O.J. Simpson and his murder trial, which ended in a controversial acquittal Oct. 3, 1995. However, Kahn found that the use of epithets, “though offensive,” was not directed toward Turner, and therefore was “not severe enough to sufficiently affect the conditions of employment to implicate Title VII … . At no time does plaintiff allege that such epithets were directed toward him personally or in reference to him, and there is no claim that plaintiff felt threatened or humiliated by the comments.” On the other hand, the court found, the pleaded facts are sufficient to sustain a claim of discrimination and retaliation. Turner, who was replaced by a white male after his termination, alleged selective enforcement of the travel rules. He claimed that white conductors routinely allow abuse of the rail privileges. “By pointing to instances where conductors knowingly permitted unauthorized use of rail passes, plaintiff infers that widespread unauthorized use of rail passes may exit, or at least, goes unnoticed by those conductors whose duty it is to catch such abuse,” Judge Kahn said. “None of the other conductors have been investigated or subjected to any adverse employment action.” Gideon J. Karlick and Michael J. Andrews of Manhattan represented Turner; Mark S. Landman of Landman Corsi Ballaine & Ford in Manhattan represented Amtrak.

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