Capers v. Long Island Railroad Joint Appendix Volume II
Public Court Documents
January 1, 1977
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Brief Collection, LDF Court Filings. Capers v. Long Island Railroad Joint Appendix Volume II, 1977. a9e421be-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/37cbe43f-fa3d-440c-a501-d4313ac54e57/capers-v-long-island-railroad-joint-appendix-volume-ii. Accessed May 01, 2025.
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77-7174
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
FRANCES JOY CAPERS, et al.,
P l a i n t i f f s - A p p e l l a n t s ,
against
LONG ISLAND RAILROAD, et al.,
D e f e n d a n t s - A p p e l l e e s .
On Appeal from the United States District
Court for the Southern District of New York
JOINT APPENDIX
VOLUME II
Pages A-264 — A-631
JACK GREENBERG
Legal Defense Fund
Attorneys for Plaintiffs-Appellants
10 Columbus Circle
Suite 2030
New York, New York 10019
WHITE & CASE
14 Wall Street
New York, New York 10005
732-1040
Of Counsel:
Thomas McGanney
Richard J. Holwell
Todd B. Sollis
Ronald M. Hershkowitz
Robin Colin-Greene
TABLE OF CONTENTS
Docket Entries. ............ ................................ A-l
Order to Show Cause with Temporary
Restraining Order signed by Judge
Owen, dated August 23, 1974 ........................... A-11
Affidavit of Thomas McGanney in Support
of Order to Show cause and Temporary
Restraining Order, dated August 23, 1974 ............. A-13
Affidavit of Edward E. Harris in Support
of Plaintiff's Motion for a Temporary
Restraining Order dated, August 23, 2974 ............ A-15
Exhibit A - Equal Employment Opportunity
Commission Determination,
dated July 16 , 1973 ................... A-25
Affidavit of Nelson D. Peters in Opposition
to Plaintiff's Motion for a Preliminary
Injunction, dated August 28, 1974 ..................... A-28
Affidavit of Nelson E. Steele in Opposition
to Plaintiff's Motion for a Preliminary
Injunction dated, August 28, 2974.................... A-34
Exhibit A - Letter from Steele to Harris
dated August 21, 1974 .......... ...... A-37
Summons, dated October 1 , 1974 ......................... A-38
Substituted and Amended Complaint, filed
October 1, 1974 .................... ................. . A-41
Order to Show Cause signed by Judge Gagliardi,
September 17 , 1975................ .................... A-77
Affidavit of Thomas McGanney in Support of
Order to Show Cause and Temporary Restrain
ing Order, dated September 16, 1975 ................... A-80
Page
(i)
TABLE OF CONTENTS
(Continued)
Affidavit of Edward E. Harris in Support of
Plaintiff's Motion for a Temporary Restrain
ing Order, dated September 16 , 1975.............. . A-82
Exhibit 2 - Letter from Gaynor to Harris,
dated September 12, 1975.............. A-88
Excerpts from the Proceedings of U.S. District
Court held on October 1-3, 7, 10 and November
11 , 1975 . ................................ ............ . A-89
Page
Witnesses
Edward E. Harris
Direct.... .............................................. A-90
Joseph Shearer
Direct. ................................ ............ A-134
Cross ................................. A-140
Edward E. Harris
Cross ................................. A-141
Redirect. ............. A-187
Recross ............................. A-196
Redirect. .................... ........... ............... A-198
Merrill L. Stewart
Direct. .................. A-199
Lawrence W. Dixon. ................ ...................
Cross.......... ............................... . A-20 4
Robert R. Lansperg
Direct............................. A-205
Cross....................................... A-207
Louis J, Rizzacasa
Direct. ............................ ......... . A-214
Cross ...................................... ............ . A-228
(ii)
TABLE OF CONTENTS
(Continued)
Joseph J . Gaynor
Direct...... ........................ * * *......
Cross................................ *.....* * ■
Colloquy..................... ......... * *......
Robert E. Peterson
Direct. ................................. .
Order to Show Cause with Temporary
Restraining Order (unsigned),
dated November __, 1976 .......................
Affidavit of Richard J. Holwell in Support
of Order to Show Cause and Temporary
Restraining Order, dated November 17, 1976....
Affidavit of Edward E. Harris in Support
of Plaintiff's Motion for a Temporary
Restraining Order dated, November 16, 1976....
Excerpts from the Proceedings of U.S. District
Court held on December 10-15, 1976 and January
3-4 , . ...........................................
A-239
A-250
A-261
A-263
A-264
A-266
A-270
A-281
Page
Witnesses
Edward E. Harris
Direct........
Cross........ .
A-28 2
A-308
Edmund Lehr
Direct...
Cross....
A-3 25
A-3 55
John Segreto
Direct,...
Cross......
A-357
A-3 64
( i i i )
TABLE OF CONTENTS
(Continued)
Page
Witnesses
Raymond Jacques
Direct....... A-36 7
A1 Rubin
Direct.......
Cross........
A-369
A-37 2
Edmund Lehr
Redirect..
Recross...
A-37 5
A-3 7 6
Colloquy......... A-377
Louis E. Satter
Direct.......
Cross........
Redirect.....
A- 3 7 8
A-38 3
A- 38 3
Vincent Civitillo, Jr.
Direct..............
Cross...............
A-38 3
A-393
Patrick J. Quinn, Jr.
Direct. . ............
Cross ................
A-412
A-415
Vincent Civitillo, Jr.
Cross. ................
Redirect.............
Recross..............
A-418
A-420
A-4 21
James T . Hodges
Direct....... A-4 21
Joseph Shearer
Direct......
Cross .......
A - A l l
A-435
TABLE OF CONTENTS
(ContTnued)
Page
Witnesses
James R. Bloomfield
Direct. ........... A-436
Joseph J. Gaynor
Direct. ........
Cross.........
Redirect......
Recross.......
A-4 4 7
A-461
A-48 5
A-4 94
Louis J . Rizzacasa
Direct. ..........
Cross ............
A-49 6
A-504
Lawrence W. Dixon
Direct.........
Cross..........
Redirect.......
A-516
A- 53 5
A-581
Edward J. Zeman
Direct.......
Cross........
Redirect.....
A-583
A-590
A-59 6
Edward E. Harris
Redirect. ......................................* *
James R. Bloomfield - Deposition
Testimony ........................... ...............
Opinion Memorandum and Order of Judge Gagliardi,
dated March 25 , 1977 .............................
Notice of Appeal, dated April 14, 1 9 7 7 •
A-597
A-60 3
A-604
A-629
(v)
TABLE OF CONTENTS
(Continued)
Page
EXHIBITS
Exhibits from the Proceedings of U.S. District
Court held on October 1-3, 4, 10 and November 11,
1975 .............. ......... ................... *.........
Plaintiff's 1975 Exhibit 2 - Letter from Harris to
House, dated August 2 , 1967 .................. ••••
Plaintiff's 1975 Exhibit 3 - Letter from Wainwright
to Harris, dated Janaury 17, 1968 ............ ••••
Plaintiff's 1975 Exhibit 4 - Letter from R.W.M. to
Harris, dated November 21, 1968...................
Plaintiff's 1975 Exhibit 5 - Notice from Valder to
T.P. Moore, dated September 1 , 1974 ...............
Plaintiff's 1975 Exhibit 7 - Note from Gaynor to
Harris, dated July 22 , 1974 ......... ......... .
Plaintiff's 1975 Exhibit 7A - Handwritten Letter
from Harris to Gaynor, July 30, 1974 ......... .
Plaintiff's 1975 Exhibit 8 - Memorandum from
Rizzacasa to Harris, dated August 13, 1974 .......
Plaintiff's 1975 Exhibit 9 - Book of Rules
Examination taken by Harris on August 21,
1974 . ................................. .................
Plaintiff's 1975 Exhibit 10 - Note from "Gene"
to "Bob", dated August 11, 1975............. .
Plaintiff's 1975 Exhibit 11 - EEOC Reports
from 1968-73 ................. .................. * • * * '
Plaintiff's 1975 Exhibit 12 - Transcripts of
conversations between Rizzacasa and King........
A-63 2
A-6 33
A-634
A-635
A-636
A-638
A-6 39
A-64 0
A-641
A-649
A-650
A-66 3
(vi)
TABLE OF CONTENTS
(Continued)
Plaintiff's 1975 Exhibit 13 - Memorandum from
Rizzacasa to Steele, dated August 5, 1974......... A-666
Plaintiff's 1975 Exhibit 14 - Letter from Gaynor
to Harris, dated September 12, 1975......... ...... A-667
Plaintiff's 1975 Exhibit 19 - Series of letters
of reprimand or instructions to assistant
stationmasters. ..................................... A-668
Defendant’s 1975 Exhibit A - Transcript of
Channel 4 Announcements from Tape*................. A-687
Defendant's 1975 Exhibit B - Memorandum from
Gaynor to Harris, dated November 15, 1974 ......... A-689
Defendant's 1975 Exhibit C - Memorandum from
Gaynor to Harris, dated October 2, 1974 ............ A-69Q
Defendant's 1975 Exhibit D - Memorandum from
Gaynor to Harris, dated January 28, 1975.......... A-691
Defendant's 1975 Exhibit E - Memorandum from
Gaynor to Harris, dated October 7 , 1974 ....... . A-692
Defendant's 1975 Exhibit F - Memorandum from
Partridge to Gaynor, dated October 11 , 1974*...... A-693
Defendant's 1975 Exhibit G - Memorandum from
Gaynor to Harris, dated November 7 , 1974 .......... A-694
Page
* This document, although not part of the Record on Appeal
stipulated to by the parties, was before the Court below
and is reproduced herein at the request of the appellee.
(vii)
t a b l e of c ontents
(Continued)
Pj^e
Defendant's 1975 Exhibit H - Memorandum from
Gaynor to Harris, dated November 8, 1974 .......... A-695
Defendant's 1975 Exhibit I - Memorandum from
Gaynor to Harris, dated November 22, 1974 ......... A-696
Defendant's 1975 Exhibit K - Memorandum from
Gaynor to Harris, dated February 20, 1975...... A-697
Defendant's 1975 Exhibit L - Memorandum from
Gaynor to Harris, dated March 26 , 1973 .......... . A-698
Defendant's 1975 Exhibit M - Letter from
Steele to Harris, dated August 21, 1974 ............ A-699
Defendant's 1975 Exhibit N - Determination
and Order of State Division of Human Rights,
dated December 29, 1967 .............................. A-700
Defendant's 1975 Exhibit 0 - Complaint,
Harris v. LIRR, State Division of
Human Rights, dated August 31, 1968*............ A-703
Defendant's 1975 Exhibit P - Determination
and Order by State Division of Human Rights,
dated January 1, 1969................................ A-705
Defendant's 1975 Exhibit Q - Complaint Harris
v. LIRR, State Division of Human
Rights," dated March 1, 1971...................... • • A-707
Defendant's 1975 Exhibit R - Notice of Order
After Hearing, State Division of Human Rights,
dated April 28, 1972 ............ ............ . A-708
* This document, although not part of the Record on Appeal
stipulated to by the parties, was before the Court below
and is reproduced herein at the request of the appellee.
(viii)
TABLE OF CONTENTS
(Continued)
Defendant's 1975 Exhibit "R-l" - Decision of State
Division of Human Rights, dated July 12, 1973*.... A-714
Defendant's 1975 Exhibit S - Memorandum from
Stewart to Harris, dated July 23, 1971............. A-717
Defendant's 1975 Exhibit T - Memorandum from
Stewart to Harris, dated February 28, 1972........ A-718
Defendant's 1975 Exhibit U - Memorandum from
Stewart to Harris, dated March 3, 1972............. A-719
Defendant's 1975 Exhibit V - Memorandum from
Stewart to Harris, dated April 1, 1971....... . A-720
Defendant's 1975 Exhibit W - Memorandum from
Stewart to Harris, dated October 6, 1971.......... A-721
Defendant's 1975 Exhibit X - Calculation of
Pay Rolls, dated September 17, 1975*............... A-722
Defendant's 1975 Exhibit Z - Memorandum from
Landsperg to Gaynor, dated September 17, 1975..... A-724
Defendant's 1975 Exhibit A-A - Memorandum from
Diaz to Partridge, dated December 24 , 1974 ........ A-726
Defendant's 1975 Exhibit A-B - Memorandum from
Diaz to Gaynor, dated September 11, 1975 .......... A-727
Exhibits from Proceedings in U.S. District
Court held on December 10-15, 1976 and
January 3-4, 1977 .......... . A--728
Plaintiff's 1976 Exhibit 1 - Stationmaster1s
Record Sheets, {page 1), dated November 10,
1976 ... ................. ..... ........... ............. A-729
Page
* This document, although not part of the Record on Appeal
stipulated to by the parties, was before the Court below
and is reproduced herein at the request of the appellee.
(ix)
TABLE OF CONTENTS
(Continued)
Plaintiff's 1976 Exhibit 3 - Stationmaster's
Log Book October 12, 1976 - December 10, 1976
(page 21), dated November 9-10, 1976.........
Plaintiff's 1976 Exhibit 5 - Unsigned Statement
by Lehr to Gaynor, dated November 9-10, 1976.
Plaintiff's 1976 Exhibit 6 - Shearer Statement
addressed to "To Whom It May Concern ,
dated November 11, 1976 ........................
Plaintiff's 1976 Exhibit 7 - Memorandum from
Gaynor to Harris, dated December 24, 1975....
Plaintiff's 1976 Exhibit 8 - Memorandum from
Diaz to Terminal Superintendent, dated
December 25, 1976 ................ .......... .
Plaintiff's 1976 Exhibit 9 - Dental Note from
Clarence Boone, ..............................
Plaintiff's 1976 Exhibit 11 - Chart: "Black/
Total Workers, Numbers and Percentage".......
Plaintiff's 1976 Exhibit 12 - Chart: "Dis
tribution of LIRR Employees by Department,
Union, Race, and Job with Major Department
Heads" . ......... ......... . • *.... ..... ...... *
Plaintiff's 1976 Exhibit 13 - Extracts from
Management Personne1 Files submitted pur
suant to Judge Gag1iardi's direction
(January 4, 197 6 at page 6 23 of trans
cript) ........................................... ■
Louis E. Satter.............. *...............
Alan Lines................ ...................
J . J . Dolmat...................................
A-730
A-731
A-732
A-733
A-7 34
A-735
A-736
A-737
Page
A-746
A-747
A-7 50
A-755
(x)
TABLE OF CONTENTS
(Continued)
J .B . Howe.......
David C. Roberts
John H . Roman.. .
R.E. Drumm.....
__________ D. Lawrence.......... .
Lea H . Duryea..... »......................... .
Charles R. Calederazzo..............•....... .
William J. Thomson....................... .
R.R. Lansperg..................... ..........
Plaintiff's 1976 Exhibit 15 - Offer of
Deposition Testimony........ ......... .......*
Defendant’s 1976 Exhibit B — Stationmaster s
Train Record Sheets, (pp. 1-3), dated
November 11, ........................... *........
Defendant's 1976 Exhibit I - Report: Bloomfield
to Gaynor, dated November 10, 1976............
Defendant's 1976 Exhibit J - Report: Bloomfield
to Gaynor, dated November 11, 1976 .......... • •
Defendant's 1976 Exhibit K - Report: Gaynor to
Dixon, dated November 11, 1976.............*..
Defendant's 1976 Exhibit L (Last column not in
Evidence) - Memorandum from Dixon to Files,
Subject: "Disqualification of Management
Employees", dated September 16, 1975......
Page
A-7 58
A-765
A-7 67
A-768
A-77 0
A-7 7 1
A-773
A-7 7 5
A-776
A- 77 7
A-7 8 0
A-7 8 3
A- 785
A-7 8 6
A-790
(xi)
TABLE OF CONTENTS
(Continued)
Defendant's 1976 Exhibit K - Tietjen Report to
Dixon, Steele, Gaynor, Allen, file, dated
November 10 , 1976........................... *........ A-792
Defendant's 1976 Exhibit P - Transcript of
Recorded Telephone Conversations.................. A-794
Page
(xii)
. A 264
I 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK .
X
FRANCES JOY CAPERS, et al., each : •
individually and on behalf of all
other persons similarly situated, :
Plaintiffs, : 72 Civ. 3168 (LPG)
-against- s ORDER TO
1
SHOW CAUSE
LONG ISLAND RAILROAD, et al., * i
Defendants. : I
Upon the annexed Affidavits of Richard J- Holvell.
Esq. and Edward E. Harris, sworn to November 16, 1976,
jj _
And it appearing to the Court that immediate and
I irreparable injury, loss or damage will result to plaintiff ^
\ Edward E. Harris if defendant is not restrained from removing
t I{ said plaintiff from his position of Assistant Station Master .
in that he will be unable to re-attain that position once
having lost it, and will suffer continuing and overt discri—
i
mination on the basis of race, and it further appearing to
the Court that counsel for plaintiff has complied with the
notice requirements of Rule 65 of the Fedeicl Rules of Civil
Procedure, it is
ORDERED, that .defendant show cause in Room 2603
; ■
; of the United States Courthouse, Foie}' Square, Borough of
Manhattan, City of New York on the day of November, 1976, 3
at , or as soon thereafter as counsel can be heard
!
Iwhy an order should not be entered herein pursuant to Rule
65 of the Federal Rules of Civil Procedure for a preliminary
!# injunction enjoining during thê pendency of this action
defendant and its officers, agents, servants and all persons
A 265
acting under its control and each of them from removing
Hr. Harris from his present position as Assistant Station
Master and awarding to Mr. Harris reasonable counsel fees in
.'connection with bringing this motion, and it is furtherB ORDERED, that plaintiff is hereby granted expe
dited discovery so that the depositions of the bong Island
I Railroad by the employees Ed Lehr, Lou Rizzacasa, J. R.
1 Bloomfield, Joseph. Gaynor, and of such other persons as may
I be necessary be held at the offices of White & Case. 14
dan Street. New York, New York. at 10:00 A.M. on November
I . 1976f and that the documents requested in Schedule A to
ithe Notice of Deposition be produced, with the deposition of
|the plaintiff to follow immediately upon the completion of
•said depositions, and it is further
OOTEKD, that pending >-.,.ing and determination
of said motion, defendant and its officers, agents, servants
and employees and all person, acting tnd.r their control and
each of them are temporarily restrained from taking^any
action to remove Mr. Harris from his position of Assistant.
Station Master. Sufficient cause appearing therefor, service
on defendant of a copy of this Order to Show Cause, together
with copies of the supporting papers on or before the
day'of November, 1976 shall be deemed sufficient service.
•
'Dated: New York, New York
‘ November , 1976
A- 266
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRANCES JOY CAPERS, et al., each :
individually and on behalf of all
other persons similarly situated, :
Plaintiffs, : 72 Civ. 3168 (LPG)
--against- *
DONG ISLAND RAILROAD, et al., : AFFIDAVIT
• Defendants. - :
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
RICHARD J. HOLWELL, being duly sworn, deposes:
1. I am a member of the Bar of this Court and
associated with the firm of White i Case, attorneys for
FRANCES JOY CAPERS, et al., each individually and on
behalf of all other persons similarly situated, plaintiffs
in this action. I make this Affidavit in support of the
annexed Order to Show Cause and Temporary Restraining Order,
and in compliance with Rule 65 of the Federal Rules of
Civil Procedure.
2. The relevant facts are set forth in the Affi-'
$
davit of Mr. Edward E. Harris annexed to the Order to Show
Cause. The Affidavit states that the defendant Long Island
Railroad, in retaliation for Mr. Harris' suit against it and
as a further act of discrimination against him, has removed
him from his position of Assistant Station Master ("ASM")
without a hearing. The supposed grounds for such removal
were that- he performed his duties improperly on November 10,
1976 causing an eleven minute delay in the departure of a
train from Pennsylvania Station and that although he had *
— X
- f v * 2 S 7
made the required entry in the .log book as well as an oral
report, he did not make a supplemental written report of
the incident within the time requested. The Affidavit j
further states that Mr. Harris performed his duties properly^
on November 10, 1976, was not responsible for the delay in
departure, and did not fail to perform his duties with
respect to the report. On Mr. Harris' information and
belief, no similarly situated white employee has ever been
sanctioned for such reasons as alleged.
3. This is the third time Mr. Harris has been
removed from his position as Assistant Station Master on
spurious grounds in slightly more than two years. In
August 1974, the defendant removed Mr. Harris from-service
as an Assistant Station Master at Penn Station for the first
time for alleged failure of a Book of Rules examination
which plaintiff contended was conducted in a manner never
previously resorted to with respect to white employees
similarly situated. The facts as to this retaliatory action
by the Railroad are more fully set forth in Mr. Harris'
Affidavit dated August 23, 1974, attached hereto as part of
Exhibit A'. On September 20, 197 4, this Court conducted an
evidentiary hearing in connection with Mr. Harris' applica
tion for preliminary relief enjoining the Railroad from
removing him from his position as an ASM. During the course
of Mr. Harris’ direct examination at that hearing, and at
the Court's suggestion, the matter was resolved when the
defendant agreed to continue Mr. Harris as an ASM if he
passed a Book of Rules examination given to a randomly #
selected group of ASM’s similarly situated. Mr. Harris
subsequently received the highest score of the seven .
Assistant Station Masters taking the test and was continued
- 2 -
A- 2G8
in the position while several of the white ASMs— who had
not taken a written Book of Rules examination in several
years— failed to pass.
4. In September of 1975, the Railroad removed
Mr. Harris from service as an ASM for a second time on
the grounds that he was "insubordinate" to one of his
superiors. The facts as to this further attempt to inti
midate Mr. Harris are more fully set forth in Mr. Harris’
Affidavit dated September 16, 1975 attached hereto as
Exhibit A. On October 1, 2 and 3, 1975, this Court
conducted a second evidentiary hearing in connection with
Mr. Harris' application for preliminary relief enjoining
the Railroad from again removing Mr. Harris from his ASM -
position. Following the completion of these hearings, again
at the Court’s suggestion, the matter was resolved when
the parties agreed that Mr. Harris should continue as an
ASM after 60 days off the job. This agreement was made
without prejudice to either party’s position and was not to
be considered a disciplinary action or in any way made a
part of Mr. Harris* personnel records.
5. At the end of the period agreed to by the
.parties and described above, the Railroad informed us that
Mr. Harris would have to take a physical examination before
being reinstated. We objected on the ground that such-
a requirement had not been part of the settlement and that
the Railroad had failed to show that this was a bona fide
requirement imposed on other employees of the Railroad in
similar circumstances. After a hearing, the Court ordered
Mr. Harris to undergo the physical, which he passed.
6. 1 had discussions relating to this matter
with Richard Stokes, Esq. and Laurence Rubin, Esq.,
- 3 -
t
A 2GB
attorneys for the Long Island Railroad, representing
defendant. On November 12. 1976, Mr. Stokes indicated
that defendant would not reinstate Mr. Harris as an
Assistant Station Master. On November , 1975 I advised
that plaintiff would apply to this Court
for a Temporary Restraining Order at
November , 1976, i„ Room 2603.
No previous application for this relief has
been made other than the relief sought in 1974 and 1975
as discussed in paragraphs 3 through 5 herein.
Sworn to before me this
Notary Public
TONI ANN lA CON atl
Notary Public, S?o*s of New York
No. 2 4 -4 5 2 3 9 5 5
OuoJified tn County-
Commission Expire* /."tars* 3 0 . ! 5 7 £
^d j; Hoiwe11
/7 day of November, 1976
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRANCES JOY CAPERS, et al., each
individually and on behalf of all
other persons similarly situated.
Plaintiffs,
-against-
LONG ISLAND RAILROAD, et al..
Defendants.
_ _ _ _ _ - x
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
EDWARD E. HARRIS, being duly sworn, says:
1. I am a black citizen of the United States,
and an employee of defendant. Long Island Railroad (the
"Railroad"), and a member of a class of plaintiffs bringing
this lawsuit. I make this affidavit in support of my motion
for a temporary restraining order restraining the Railroad
from future violations of my rights under Title VII of the
Civil Rights Act of 1964 and ordering the Railroad to
reinstate me in the position of Assistant Station Master
("ASM"). ,
2. This is the third time in slightly over two
years that I have been forced to appear before this Court to
seel, injunctive relief as a result of the Railroad's
retaliatory measures taken against me as a plaintiff in this
action. I was first forced to seek ihjunctive relief in
A - 2 7 0 -
I
72 Civ. 3168 (LPG)
AFFIDAVIT
A - 2 7 1
August, 1974 when the Railroad attempted to remove me on
spurious grounds from my position of ASM. The history
of the Railroad's discriminatory activities against me
is- contained in my affidavit which was submitted in
support of that 1974 motion, a copy of which is attached
hereto as part of Exhibit A and in my testimony in the
course of the 1975 hearing.
3. In short, the Railroad attempted to remove me
in 1974 from ASM to the lower-ranking "usher" status on
the purported grounds that I had "failed" an examination
which the Railroad demanded that I take and which examination
was not required of other ASMs. As a result of my motion,
Judge Owen of this Court ordered that the Railroad maintain
me in my position of ASM with the same seniority and pay
status pending the outcome of a hearing on the preliminary
injunction motion. During the course of my testimony on
September 20, 1974 at the preliminary injunction hearing,
and at the suggestion of the Court, the matter was resolved
when the Railroad agreed to maintain me as an ASM if I passed
another Book of Rules examination which would be adminis
tered to me and six of the eleven other ASMs. I took this
examination and scored higher than any other ASM selected
to be similarly tested.
4. I was again forced to seek injunctive relief
in September, 1975 when the Railroad, continuing its pattern
of harassment and retaliatory action against me, attempted
to remove me on the ground of "insubprdination". Following
the hearings held in connection with my 1975 motion, I was j
Ireinstated in my former position after a period of two months
-2 -
A- 2 7 2
i following my removal from service. The terms of this
' settlement specifically provided that this period was not
I to be considered a suspension or a reflection of any sort
; on my work record. It was for this reason, as well as the
0 necessity of providing for my wife and children, that I
1'accepted this settlement. The ongoing story of the Rail—
, in my affidavit which was submitted in support of that
! 1975 motion, a copy of which is attached hereto as Exhibit
!'A, and the testimony taken at that hearing.
the Railroad continued to seek to harass me, by contending
that I was required to submit to a physical examination
before resuming my duties. The Court ordered that I submit
to such an examination, over my objection that it was not
part of the settlement terms and not required of other
employees.
harass and humiliate me. Manufactured charges against me
have twice before been brought before this Court; the Rail
road persists in its determination to fire me. On November
11, 1976, I was dismissed from my position as Assistant
I ' •
| Station Master for the third time and am now charged with
|i allegedly causing an eleven minute delay in the departure
3 of . rain No. 82 on November 10, 1976 and of failing to file
La finely supplemental report of the November 10, 1976
Iincilent even though a report had been made in the log book
land orally as well.
! road's discriminatory activities against me is contained
5. Even after the settlement of that matter,
6. The Railroad has continued its campaign to
A 2 7 3
7. The eleven minute delay was due to a failure
to reposition train No. 82 in a timely fashion as necessi
tated by the closing for repairs of one tunnel leading out
of Pennsylvania Station. This was due to no fault on my
part as I was not notified of the tunnel closing until 12:41
A.M., the minute train No. 82 was due to depart. In any
event, if the Railroad dismissed every employee involved in
an eleven minute delay of a single train, there would not
be any workers left to run the trains. Moreover, the
supplemental report of the November 10, 1976 incident reques
ted by Mr. Gaynor through Mr. Bloomfield was incomplete as
of the evening of November 11, 1976 because of an extremely
busy workload the evening of November 10 and because of'
justifiable personal reasons. To the best of my knowledge,
a simple delay in the completion of a supplemental report
(particularly in light of the fact that a report had been
made in the log book and orally as well) has never before
resulted in the dismissal of any white employee similarly
situated.
8. Before discussing the events of November 9,
10, and 11, it is necessary to supply the Court with some
background information. There are four tunnels or "lines"
into and out of Pennsylvania Station. Lines 1 and 2 are for
normal use by Amtrak and the New Haven Railroads. Lines 3
and 4 are allocated to the Long Island Railroad. The even
numbered lines are for westbound traffic and the odd numbered
lires are for eastbound traffic. On an average of about
three times a week, line 3 is temporarily closed during the
early morning hours for repair. When line 3 is closed the
Long Island Railroad eastbound trains must be sent through
line 1. Each train rescheduled to use line 1 must be
positioned at a location different from that for a departure
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through line 3.
The repositioning of a train requires the
| cooperation of a number of people. "A" tower, run by the
! Penn Central, controls the traffic into and out of
jj Pennsylvania Station. When the Road crew is ready to
| work on a line, "A"tower has the responsibility of
J notifying the Yardmaster, "C" tower, and the Station Master
5 of the line closing so that incoming trains can be properly
repositioned. The Yardmaster, a Long Island Railroad
employee, has the responsibility of placing the train
in its proper place on its proper track. "C" tower,
manned by Penn Central personnel, has equipment which allows
it to detect a "fouling" or improper positioning of a
train. It is the responsibility of "C"tower to notify
the Yardmaster and Station Master of such a fouling. The
Station Master, and in his absence the Assistant Station
Master, has overall responsibility for the station. His
duties principally include setting up passenger trains so
that they are loaded properly, providing passenger informa
tion, public relations and supervising station police.
In practice the Assistant Station Master also assists
the Yardmaster and "C" tower in positioning the train by
notifying them of an improper train placement. When a iine
closes it would traditionally be the job of the special yard
crew to move an incoming train from its scheduled stopping
pos tion to its new position necessitated by the line -
clcsing. In recent practice an Assistant. Station Master
has been of further assistance to the Yardmaster and "C"
tower by notifying the engineer of an incoming train of the
new position, thereby saving the “extra" yard crew from
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the necessity of moving the train to the new position. j
Communication between "C“ tower, A tower, the
Yardmaster and the Assistant Station Master is critical
to the smooth running and safety of a terminal area. Such ,
communication can be had either by telephone or by a direct
line-speaker system.
9. Ordinarily, the individual in "A* tower
communicates all information as to line closings directly to
the Assistant Station Master {as well as to the Yardmaster).
John Segreta was on duty in "A" tower on the evening of j
November 9 and the morning of November 10, 1976. Mr. Segretc
has. over the past two months, refused to speak or to
communicate in any way with me on the gob. i have made knowr
this state of affairs to my supervisors, but no one has
made any attempt to remedy the situation.
10. I arrived at the Station Master’s office at
10:43 P.M. on the evening of November 9. I was informed by
Jim Bloomfield, an Assistant Trainmaster completing his
shift, that line 3 was to be closed sometime between 11 P.M.
and 7 A.M. the next morning and that an "extra" yard crew
was on duty. At approximately 11=45 I contacted the Yard-
master, Mr. Ed Lehr, by telephone. I asked him if he knew
when line 3 would be taken out of service. He indicated
that he did not know when the line would be taken out but
that he would call me back. About 6 or 7 minutes later
Mr. Lehr called and gave me the lineup changes (those
changes of track occasioned by the line closing) for all
trains after No. S02 (which was ,due to depart at 1:01 A.M.).j
Both of us knew from prior practice that line 3 would most
likely be put out of service by 1:00 A.M. However, no
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lineup changes were provided for those trains scheduled to
depart between 12:00 A.M. and 1:00 A.M. as neither of us
knew the exact time the line would close down. Sometime
between 12:05 and 12:15 I again called Hr. Lehr and
asked him whether he had heard anything from "A" tower with
respect to the exact time that the line was to close. He
answered in the negative.
11. At 12:24 A.M., two minutes behind schedule,
train No. 489 entered the station, stopped on the eastbound
end of track 17 and discharged its passengers. Train No.
489 would become train No. 82 (scheduled to depart at 12.41
A.M.) on its departure. It was loaded with passengers and
at 12:41 its doors were closed. It was ready to pull out
of the station when "A" tower announced over the loud
speaker that line 3 was out as of 12:41 A.M. I immediately
contacted "A" tower over a direct line and told Mr. Segreta
that train No. 82 was about to depart and the line should
not be closed at'that moment. I asked him to wait until
the 12:41 departed before closing line 3 for repairs. As
Mr. Segreta knew, unless line 3 remained open, the train
would have to be delayed in order to reposition it for
departure on line 1. He told me, in words or in substance
not to tell him when to take out a tunnel. At that time,
while I was on the line with "A“ tower, "C” tower informed
me over another direct line that train No. 82 was foiling
(i.e., was in the wrong position) and would have to be
pi lied west to its proper position for departure over line
1. Following standard procedure, I immediately informed
the Yardmaster to get his crew to pull the train west on
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track 17, contacted "C" tower for the proper signal, con
tacted the engineer to remove his keys and contacted the
Car Inspection Foreman, Mr. Winston, with respect to a new ,
brake test. Train No. 82 was pulled west behind the proper
signal, the brakes were retested and, then, at 12:52 A.M., ;
J eleven minutes behind schedule, it departed eastbound through
line 1.
12. I left the Station Master's office at 7:00
A.M., the morning of November 10. Before leaving I entered
a report of the incident in the log book, stating in essence
what is detailed above.
13. I came to work at approximately 10:45 P.M.
on November 10, 1976. When I arrived at the station Mr.
(Bloomfield, an Assistant Trainmaster, informed me that Joe
Gaynor, the terminal superintendent, wanted a written
statement from me explaining the incident which occurred
in the early morning hours of November 10, 19.76 by the .
next morning. He also informed me that line •* would be
closed that night, although the decision to close the line
was later rescinded. ' _ ; ;
14 . The night of November 10 and the morning of
November 11, 1976, I was usually busy taking care of the
running of the "Sperry cars" in addition to performing
my other duties. The Sperry cars are run on each of the
fo. r lines to check for and locate defects. This neces-
sit ites more work than usual in that I must be aware of all
foi r lines during the running of the Sperry cars, as each
line must be closed down at some point during the night.•
15. I started to write up a report for Mr.
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Gaynor during the early morning hours of November 11 but
was unable to complete the report because of the time
demands on my job that morning. I returned home at about
9:00 A.M. on November 11 and immediately called Lou
Rizzacasa to ask him to please tell Mr. Gaynor that I did
not have time to finish the report and that I would try
to finish it and bring it in that night.
16. I went to sleep fully intending to draft the .
report as soon as I awakened. I awoke at 4:00 P.M. and had ̂
to rush to my dentist. Dr. Clarence Boone, as an inlay had ifallen out of my mouth. I arrived by 5:00 P.M., waited for
a while, had my tooth fixed and left at about 6:10 P.M..
Although I hadn't completed the report by the time I went
to work the evening of November 11, I believed I could
complete the report before the morning of November 12 and
leave it for Mr. Gaynor, who normally begins work at about
10:00 A.M.
17. When I arrived at the station at about 10:49
P.M. on November 11, Mr. Gaynor, Mr. Bloomfield and Mr.
McKenna were waiting for me. Mr. Gaynor asked me if I had
the report. I explained to him why I did not. He asked me
what happened in'the early morning hours of November 10,
1976. 1 explained to him exactly what happened. Mr. Gaynor
.said that Mr. Lehr had reported that he told me when line
3 ;as going to be closed. I told Mr. Gaynor that Mr. Lehr
had never told me at what time line 3 was to be closed.
Mr. Gaynor then said: "I can't take this anymore, I've
had enough of this, you didn't even bring the statement you
said you would... I just can't buy that — you're removed
from your job." He said that I should report to Mazzanotti
and from then on I would be an usher.
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f.
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18. In light of the Railroad’s discrimination
1f against me in the past for my role as a plaintiff in this
t’
action, in light of the fact that I was not at fault in
>■ causing the eleven minute, delay, and furthermore, in light
a
]' of the nature of the alleged neglect of duties for which I
was removed from service, I can only conclude that my
latest dismissal is part of the Railroad's campaign of
i harassment and retaliation against me for my participation
as a class member in this case. Although I have been a
loyal Railroad employee "for 22 years, the Railroad's
retaliatory measures leave me with only my seniority as an
| usher and the humiliation suffered from being the object.
of the Railroad's racially discriminatory practices. If
the Railroad is permitted to fill my position with another
| employee, an extremely difficult barrier will have been
created to my regaining a position which has thrice been
wrongfully taken from me. Moreover, the Railroad will have
i
been encouraged to continue its pattern of manufacturing
charges and otherwise discriminating against me for having
i
had the courage to be a named plaintiff in an action against
the Railroad to establish the constitutional and federal
right of black individuals to be free from racial discrimina
tion.
19. On the basis of this affidavit and the
Jprior history of this action, I respectfully reguest this
Court to order the Railroad to cease immediately its -
continuing discriminatory and retaliatory tactics against me.
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EXCERPTS FROM PROCEEDINGS OF
U. S. DISTRICT COURT HELD
ON DECEMBER 10-15, 1976
AND JANUARY 3-4, 1977
(Pages A- 282 to A- 602 following)
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Q Did either Mr. Bloomfield or McKenna have any
information for you?
A Yes. Mr. McKenna and Mr. Bloomfield informed me
that line number 3 was going out of service some time that
night between the hours of 11 and 7 the next morning.
Q Mr. Harris, I would like to show you another
record kept by the Long Island Railroad, which is the track
and signal diagram.
MR. HOLWELL: I have shown it to defense counsel.
THE COURT: Any objection?
MR. STOKES: I have no objection, your Honor, as
long as the record clearly reflects that this track and
signal diagram is not in any way to scale.
THE COURT: All right.
MR. HOLWELL: Wa frankly don't know, your Honor,
whether or not it is to scale.
(Plaintiff's Exhibit 2 was received in
evidence.)
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r 34]np ja 11
to seven the next morning.
I waited until Eddie Lehr came on duty, which
was 11:30, and generally I gave him a little time to
acquaint himself with his task of the night, and T called
him at about 11:45 and asked him whether he had any
notes in regards to the same fact.
He told me he had, and I asked him did he
speak with A Tower on it, did he have any specifics as
to what time this line was going to be ought.
He said no, he hasn't, at that particular
time, because we would continue to load on the normal
tracks until we did get some specifics on it.
(Continued on next page)
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[ 37 ] A - 284 Iel ia 3 Harris - direct I
|
other duties around the stationmaster's office, and at
3
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11:55, Mr. Lehr yelled into the squawk box to my office, as
well as to Vinnie — he was calling Vinnie at C Tower --
he says, "Vinnie, Line 3 is going out of service tonight,
and when it does, will you please inform us whenever -- if
there is a fouling in any place, please inform us
immediately."
I reiterated that to Vinnie. Vinnie
promised that he would do just that.
Q During this time did you make any efforts to
contact anybody else?
A During that time I attempted to reach A Tower.
In other words, I rang his number.
Q Did anybody answer?
A No one answered. The general practice, I have
a direct line with A Tower, and the general practiceis
if I call him or if he calls me — this has been the
general practice under normal conditions -- the line would
light up, it says that A Tower is calling. If I am too
busy at that particular time, if I am on other phones,
the moment I get a little time, I will call him, and
vice-versa.
During the past couple of months, this has not
happened. He's just ignored his phones.
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[38]
el ja 4 Harris direct h 285
Q After hearing Mr. Lehr's squawk box request
to Mr. Civitillo, did you do anything else?
A I beg your pardon?
Q I said, after you heard'this squawk box
communication by Mr. Lehr at around 11:55, did you do
anything else?
A After that, Mr. Lehr called me back at betv/een
12:05 and 12:15, and he gave me the lineup. He gave
me the lineup, and from the 101 scheduled train, Train
No. 802.
Q Is that train listed on this Defendant’s
Exhibit 1, your train record sheet?
A Yes. This train here.
Q What did you say with respect to that train?
A He said that he was going to bring Train No. 193
into Track 15 to make up Train No. 802.
Q Is 193 also listed on your record sheet
there?
A Yes, it is.
Q As an incoming train at 12:19?
A Right. It arrived on that morning at 12:18
on Track 15.
Q So the first thing he told you was that he
was going to swing 193 to Track 15?
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[39]
el ja 5
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you?
1691.
Q
A
To Track 15 for Train No. 903.
What was the next track change that he gave
The next track change he gave me was Train No.
What did he say about that one?
That he would bring that to Track 16 for
Train No. 1602.
Q What does 1691 usually arrive on?
A On Track 18.
Q
A
What was the next track change he gave you?
That he was bringing in Train No. 195
to Track 17 for Train No. 402.
Q What was the next track change after that?
A After that, he gave me Train No. 1601. He
was bringing it into 14 for the PJ 146.
Q Did he then continue to give you track changes
throughout the rest of the night.
A Yes. He gave me all the changes up to five
o'clock that morning, from Train No. 801, the 101.
Q Did he give you any track changes with regard to
trains before 101?
A No. He said we would place those by ear.
Q Did he tell you at that time what time the
SOUTHERN DISTRICT COURT REPORTERS. US. COURTHOUSE
F O I E Y ' ' >1 ’ A ? F N F W Y O f l K N Y - ?9!.10?0
[40]
el ja 6 Harris - direct (K- 287
line was going to close?
A No, he did not.
Q Did he say anything about the line at all?
A Yes. We discussed that. I asked him, has he
gotten any more information from A Tower. He says no,
he doesn't know yet, "But I will get back to you as soon
as I get any further information from him.
Q Did he say anything to you with respect to
Train 489?
A No, he did not.
Q Did he say anything to you about having trains
pulled west?
. A No.
Q You say Mr. Lehr called you this time. Did
Mr. Lehr call you?
A He called me.
Q He used the'dial phone, did he?
A He did use the dial phone, yes.
Q Do you know what Mr. Lehr’s practice is with
regard to whether he uses the dial phone or the squawk
box?
A His practice is to use the dial phone.
’ Q When does he use the dial phone?
A Whenever he gives me a lineup.
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[41]
el ja 7 Harris direct M 88
0 After yetting this lineup at 12:05, did
you have any further communications with Mr. Lehr?
A At about shortly after 1 spoke to Mr. Lehr
then I tried again to contact A Tower, with the same
results. Then at sometime around 12:15, approximately
then, I called Eddie again and asked him had he gotten
any further information from A Tower, and he said no, he
hasn't, but he still promised that as soon as he got it,
he would furnish it to me.
Q By the way, is it Mr. Lehr's usual practice
to call you up and give you a partial lineup?
A To call me up —
Q And give you a partial lineup.
A Yes. This is a general practice. It's
getting ahead of things. We feel almost certain that the
line will go out by one o'clock, you see. It's a matter
of getting ahead on the job. And so we will adjust ourselves
to whatever happens in between. But we feel almost
certain that the line will go out by one o'clock, so he
would give me that lineup.
Q After this 12:15 call by you to Mr. Lehr
to find out if he knew when the line was going out, did
you have any further communications with Mr. Lehr up
until 12:41 that morning?
S O U TH ER N D I 5 I K I C T C O U R T R E P O RT ERS. U S . C O U R T H O U S E
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[42]
el ja 0 Harris direct A. 289
A
Q
during this
A
Q
require you
A
Not that I can recall.
Did you have any communications with C Tower
time?
No.
Does your job as assistant stationmaster ever
to be out of your office?
Oh, constantly in and out I am, all night
long.
Q For what purposes do you leave the office?
A Many different reasons. But on that particular
night, we had the 12:11 train which was not moving as
fast as I thought it should, and 1 was getting no
response over the radio, and at one time I dashed out to
see what was happening on the east end of the platform,
and by the time I got down to the platform, they pulled
out. And this is like this might be happening all
night long.
At one time I went out to show a passenger
where her locker was located. I at another time went
to the ticket window and gave him a lineup, the change
that had been given to me by Eddie.
Another time a passenger called me and stated
that he thought he had left his door keys attached to the
keys that he opened the locker with and asked me to check
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el ja 9 Harris - direct
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it out and see if he had.
Numerous times --
Q These specific times you referred to, can you
place them during the night as to when they occurred,as to
when you left your office to perform those duties?
A Well, after that, after about 12:15, from
about 12:15 into about 12:25.
Q Let me direct your attention specifically,
Mr. Harris, to Train 489. Are you familiar with that
train?
A I beg your pardon?
Q Are you familiar with Train 489?
A Yes, I am.
Q When is that scheduled to arrive?
A At 12:22.
Q What time did it arrive that night?
A 12:24.
Q Do you know what track it arrived on that
night?
A On Track 17.
Q Is that the track it is scheduled to arrive
on?
A Yes, it is.
Q There was no changing of tracks for 489?
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[44]
el ja 10 Harris - direct
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in?
A
Q
A
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become?
No, there was not.
Do you recall what position Train 489 stopped
In its normal position.
On the east end of the platform?
Yes.
What happens to Train 489? What does it
A 489 turns around for Train No. 82, the 12:41
scheduled train.
Q What line is Train 82 scheduled to depart
through?
A Normally out of Line 3.
Q Was it in its proper position to depart
through Line 3?
A It was.
Q Was it in proper position for Line 1?
A No, it was not.
Q It was fouling, right?
A Yes, this is a fact that I found out later on.
Q If it was going to go out Line 1, how much was
the train fouling by?
A Oh, it was fouling a tremendous amount. It
was located in its normal position. As far as we
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145]el ja 11 Harris direct A - 292
understood at that particular time in the office, the
stationmaster s office, it was normally loading and was
obviously fouling to go out of Line 1.
Q It wasn't just a matter of a couple of feet?
A No, no, certainly not.
Q When 489 was coming in the station, did you
radio the engineer to tell him to pull west?
A _ No, I did not.
Q Why didn't you do that?
A Because I had no knowledge of Line 3 going out
of service, or going out of service before that train
was scheduled to depart from the station.
Q If you knew that the line was going to go out
at some point, is there any standard procedure with
regard to pulling it west just to make sure?
A No, because whenever the line is to go out,
A Tower ahead of time tells me or the yardmatser — not
me or the yardmaster, but generally it has been the
practice with the yardmaster during the past couple of
months, as I stated before, but during normal relation
ship he would tell both of us.
Q Between the arrival of 489 at 12:25 and its
departure as Train 82 at 12:41, did the yardmaster ever
make any reference to about Train 82 as being fouling?
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ellt 5 Harris-direct
A - 293
Q At that time you didn't know it was going out of
service?
A I did not.
Q Any time between 12:24 and 12:41, did you hear
the yardmaster make any requests on the squawk box to tell
him whether or not the train was fouling?
A No, I did not.
Q Did you see the yardmaster make any effort to have
the train pull west between 12:24 and 12:41?
A No.
Q During the time the 11-minute delay was occurring ,
Train 1691 was due into the station, wasn't it?
A At 12:43.
Q Where does the 1691 usually come in?
A Normally on Track 18.
Q Where had Mr. Lehr scheduled it that evening?
A On Track 16.
Q Was that because Train 1691 was then going to
depart as 1602?
A That is correct.
Q When did 1602 depart?
A At 1:11.
Q During the period that 82 was being delayed that
11 minutes, did you have any contact with Train 1691?
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hplt 6 Harris-direct A - 294
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A Yes, at about -- well, before that, before that,
the moment I realized that 82 was going to be delayed, and
naturally it was going to be delayed, and a crew ijad to come
, , , . diUiA’-'-dS-oover and pull it west and I said to Vincent -& a £ro4gjb> at
that moment, The train on Track 17 is going to have to be
pulled west," and he had just told us it had to be pulled
west and since it has to be pulled west, if 1691 is
around, just bring him right in, I told him.
And then I proceeded to try to get 82 west so
that we could get it out as soon as possible.
Q Thereafter, did the engineer of 1691 contact you?
A Yes, he did, at about 12:48.
Q What did he say?
A He asked me as stationmaster how long are we
going to sit out here and I responded to him that we would
try to get you in as soon as possible, and at that particular
moment he indicated that he thought he had gotten the signal ,
but I noticed later on that ha hadn't.
At that particular time, since it was my custom,
the moment I contact a train coming out of the tunnel, I
know he is going to be on the track in thirty seconds, I
wrote the time down, 12:48, but he didn't actually arrive at
Track 16 at that time.
During this chaotic period, I forgot to change the
time there.
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hplt 7 Harris-direct A- 295
Q Did you say anything else to the engineer at
Train 1691 when he called you?
A I also told him when he got in to pull west on
Track 16 because we had line 3 out of service.
Q Did anyone contact you with regard to the holding
of Train 1691 out of the station?
A No.
Q The yardmastsr didn't consult you on that?
A No, he didnot.
Q C Tower didn't consult you on that?
A No.
Q As far as you are concerned, Mr. Harris, could
Train 1691 have been brought into the station right away as
opposed to holding it out in the tunnel?
A Yes, as far as I was concerned.
Q And that's what you told Mr. Civitillo?
A That's what I asked him to do.
Q There was a train behind 1691, wasn't there?
A Train 195.
Q Was that also delayed in arrival?
A Yes, it was.
Q Hew delayed was that?
A It was delayed, being held in the tunnel behind
1691.
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hplt 8 Harris-direct A - 2 9 G
Q Do you recall what time it arrived?
A At 12:57.
Q The reason for that delay was, it was backed up
in the tunnel?
A Right.
Q When 1691 pulled into the station, did it pull
west at all?
A It did.
Q Did it clear?
A But it didn't clear.
Q By how much didn't it clear?
A It appeared to be 10 or 12 feet off.
Q So it was- most of the way west?
A Right.
Q When did you notice that 1691 wasn't in the
clear?
A Immediately after it arrived "on 16.
Q What did you do when you noticed that it wasn't
in the clear?
A I immediately informed the yardmaster and told h:
to send a crew over to 1691 west.
Q Did you have any communications with the usher w.
regard to 1691 not being in the clear?
A With who?
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hplt 9 Harris-direct
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Q With your usher.
A Yes, I told Joe to make an announcement 1691 to
pull west.
Q Do you know whether he made that announcement?
A No, I don't.
Q Did Hr. Lehr then send a train crew over to pull
1691 west?
A I told him, and he seamed to have because he had
faulty communications with the yard crew, he kept trying to
reach the yard crew and the yard crew would not respond and
I kept asking him, "Have you ever heard from that crew,
Eddie, pull the train west, have you heard from them?*'
"No, I'm trying to get them."
This went on back and forth and at one time the
crew tried to reach him and the crew got no response.
This was a general, seemingly thing that happened
from time to time between yardmasters and crews. Communica
tions are faulty and a lot of time is wasted that way.
Q What was the next communication you got from Hr.
Lehr with regard to pulling that train west?
A Ww spoke back and forth over the squawk box conti:
ally during that period. I kept repeatingly asking him,
"When is that crew going to get over there to pull the train
west?"
SOUTHERN DIS1KICT COURT REPORTERS. U.S. COURTHOUSE
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[65]
ellt 5 Harris-direct
A- 298
Q When did that occur?
A When I arrived on the job that night, on the
night of the 10th.
Q What time did you got to the job that night?
A At 10:43.
Q Who told you that you were — who asked you to
write another report?
A Mr. Jim Bloomfield, assistant trainmaster.
Q What did he say to you?
A Just told me, "Ed, Joe wants a full report on
what happened last night."
without
I said, "What does he want that isn't in the log?’
He says, "Well, tell me what happened."
Then I proceeded to tell him what happened, that
any prior notice, that A Tower took the line away
from us at the departure time of Train 82, and that this had
been — it had become a practice of A Tower to just take
lines — - I told him this before, take lines and tracks out
at will without ever informing me of same.
there."
And he said, "Well, in the report, put that in
And he asked me about 1602. I told him about
the situation there
He said, "Well, include that in also. What else
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[66]
silt 6 Harris-direct A- 299
happened?"
I told him I called 40 office and asked for the
trainmaster to call me, asked 40 office to have the train
master paged and call me, and I haven't heard from the train
master yet.
I then asked him, "Incidentally, who is the train
master now on this tour for Amtrak, because they have been
going through all kinds of changes." You get to the point
where you don't know who's Conrail or Amtrak or what.
So he says, "Well, frankly, I don't know either."
He made a phone call and he got no results with
that. And that was the end of our discussion.
Q Do you know whether or not you forgot to tell him
anything about the events of November 9th and November 10th?
A Did I forget to tell him?
Q Anything about the events of November 9th and
November 10th.
A Yes, I had just explained to him the events of
the 9th.
Q Did you tell him all the facts as you knew them?
A Right.
Q When did Mr. Bloomfield tell you that Mr. Gaynor
wanted the report?
A He just said that Mr. Gaynor wants a report by
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[67]
ellt 7 Harris-direct A- 300
morning.
Q Did he do anything else?
A No. He told me further that, "Well, I'll be
around in the station for a little while," and he walked
out of the office.
Q Did he give you a pad and pencil and put it down
in front of you?
A There was a pad there when I came in.
Q What was the work situation like on the evening
of November 10th and the morning of November 11th?
Were there any lines going to go out?
A Yes. That was waiting on me also.
Q What line?
A Line 4 was going out that night, and we had the
same notice. Line 4 would go out between the hours of 11 and
7. And indicated the same thing, it meant the same thing,
that soma time between those two hours,line 4 would go out c::
service.
Q Thereafter did A Tower contact you on that night
as to the time that the line was going to go out?
A Promptly. A Tower on that particular night,
shortly thereafter, called me, told me precisely what time
Line 4 was going to go out of service, told Harold Tower to
close Line 4 off after Train 1689 passes him, and by about
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[71]
ellt Harris-dirset
/\- 3 0 1
Gaynor during the night of November lOth-November 11th?
A Yes, I did, several times.
Q When did you first sit down and try to write it?
A About 4:30.
Q Were you able to finish the report during your
shift?
A No, I was not.
Q Why not?
A Because there were too many things happening.
Just before the 3 o'clock grouping of trains — just after
the 3 o'clock group — let me back up. By the time we got
started for the 3 o'clock group of trains to come westbound
into the station, trains to come in and make up the 3 o'clock
grouping of trains, about twenty minutes to 3, we were
informed that Line 3 was going to go out of service. This
meant that we had to move certain trains over to the other
side of the station so that we could get them out of Line 1.
So we ran all of the trains for the 3 o'clock
period out of Line 1 and the Sperry car remained in Line 3
during this period. After all of those trains departed,
shortly thereafter, the usher goes to lunch. So I'm left
alone there during that period.
And at about 4:15 — I'm sorry — at about 3:40,
A Tower called me and informed that they had discovered
S O U TH ER N D IS U M C T C O U R T REPO RT ERS. U S CO U RTH O U SE
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ellt Harris-direct A 302
something in Line 3, he didn't know precisely what it was,
but he would get back to me on it and let me know precisely
just the extent of what they had found.
He later on contacted me and told me that they had
discovered a broken rail, so be prepared for any kind of
difficulties, and they may be in the line longer than he
expected.
Consequently, the yardmaster and I had to start
thinking about the possibilities of the westbound trains
coming in for the 5 o ’clock group, where to put them, where
the line up should be, etc.
Q What time does your shift end?
A At 7 o'clock.
Q At 7 o'clock had you finished the report?
A No, I had not.
Q Did you try to finish it after your shift ended?
A Yes.
Q Where did you do that?
A Right in the stationmaster's office at the desk,
the outer desk.
Q Were you successful in that attempt?
A No, I was not, because even though the office
was then full with other supervisory personnel, the fact
that I work as assistant stationmaster there, and everyone .
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ellt Harris-direct
A 303
knows me, 99 percent of the job there is communications,
talking to the crew, where this train is located, what's this
car, and various things about the operation, so everyone who
walked into the office, they had to interrupt me for one
reason or another.
Consequently, I saw that it was hopeless.
Q Did you make any other efforts while you were on
the location to finish the report?
A Yes. I then walked out of the office to the usher
and policemen locker room. I tried to do it there, but by
thai_ time I found that I kept dropping to sleep everytime
that I would write two or three lines. So I wasn't successfu
at that.
Q Did you go home then?
A At that time I decided to, after getting a cup of
coffee and trying still to do it and getting no results, I
decided to take the 8:10 train home.
Q What if anything did you do when you got home?
A When I got home, shortly thereafter, I called Mr.
Lou Rizzacasa and informed him that I would write the report
during the day and bring it in with me during that night.
Q What did he say?
A He said okay, he would tell him.
Q By "him," you mean Mr. Gaynor?
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ellt Harris-direct
A 304
Yes, he said by - he said he would tell Mr.
Gaynor.
Q Did you then go to sleep?
A Yes, after I took a bath I went to sleep, between
10, 10:30, something like that.
Q What happened next?
A Then I slept until about 4 o'clock and after I
woke, I went to the bathroom and started to brush my teeth
and an inlay which I had been to the dentist prior to and ha-
some work dojie on, the protective covering came out, the who
thing came out, really, and I had to call the dentist and
ask for an emergency appointment.
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hplt 1 .. . A- 305 Harris-direct
Q Did you get that?
A Yes, I did.
Q When did you see the dentist?
A I arrived there between the hours of 5 and 6.
Q Vjhen did you get back home after the dentist’s
office?
A At about 7 o'clock.
Q Did you get to write the report then during the
day when you wars home?
A After the time that I had alotted for the report,
it was shot. When I got back homa I went back to bed and
when I woke up it was just time to have dinner and go to
work.
Q On your way to work, Mr. Harris, on the evening
of November 11th, what was your intention with regard to thai;
report?
A It was my intention and my hope that things would
not be so chaotic that night, that I could still write the
report during the morning some time and have the report on
Gaynor’s desk when he arrived at 10 o'clock the following
morning. -
Q Mr. Gaynor is not usually on the job when you cornt
in at all o'clock?
A No, he is not.
%
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A 306
II— usually comes in at 10 o'clock in the morning?
To my knowledge, yes.
Have you ever seen Mr. Gayr.or on the job at
11 o clock, while you have been working at the railroad?
A Never.
Q What time did you arrive at work that night,
November 11th?
A x went in on train 187, which arrives at 10:49.
Q Who was in the stationmaster*s office when you
arrived?
A Mr. Jim McKenna, assistant stationmaster, and Mr.
Bloomfield, was walking out of the door, but I could see he
was still in the station, walking out of the door as I
walked in the door.
q Anybody else?
A We had an usher who was in and out.
Q Was Mr. Gaynor there?
A Mr. Gaynor yes, of course he was there.
Q Were you a little surprised to see Mr. Gaynor
there?
A Yes, I was.
Q What happened after you entered the stationmaster
office that night?
THE COURT: We will stop for lunch right now and
Harris-direct
[76]
plht
Q
A
Q
SMIimiHN IMS. MOT COURT HI ('OKI IRS. II) COIIK 1 DOOM
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2 A F T E R N O O N S E S S I O N
3 2 : 2 0 p .m.
4 E D W A R D H A R R I S , resumed.
5 THE COURT: You got Mr. Gaynor there on the
G night o f the 11th.
7 THE WITNESS: Yes, sir.
8- DIRECT EXAMINATION RESUMED
9 BY MR. HOLWELL:
!
10 Q What happened when you met Mr. Gaynor there?
11 A I said, "Good evening," and proceeded to remove
12 my overcoat, and then Mr. Gaynor asked me did I bring the
13 report in with me. I told him I was sorry but I didn't and
14 then I proceeded to explain to him the crisis, dental crisis
15 and shortly thereafter, he walked out of the office and I
16 relieved Mr. McKenna from the desk, sat down, and then hs
17 came back in, Mr. Gaynor, and asked me what happened the
18 night before.
19 Q What did you tell him?
20 A I then explained to him what happened, and he
21 said that my story differed from the yardmastsr, C Tcwer and I
22 A Tower.
.
23 I said, "Well, it is the truth, and as far as 1
!
24 A Tower and C Tower are concerned, well, they are one and th(.
25 same."
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[103]
ellt 5 Harris-cross A- 308
on Track 19.
Q But you don't know whether you were in the office
at 12:02 wehn 1600 departed?
A No.
Q Now, Train 80, this is the one that you say did
not leave on time, that was having trouble departing?
A I didn't say that it didn't leave on time.
Q You said it was — it wasn't leaving the way you
liked.
A I said it was hesitating its departure.
Q What time was this?
A This was at about 12:11, and they closed up and
sat for a moment. I tried to reach him on the radio and gotj
no response, and momentarily dashed out of the door, started
downstairs, and by the time I got to the platform, he pulled
out.
The train still departed on time.
%
Q So you went down and how long did it take you to
get down to the platform?
A It takes a minute or so.
Q How long did it take you to get back up?
A About the same.
Q How did you know, if you were down there at
12:11 on the platform and it takes you a minute or so to get
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[104]
ellt 6 Harris-cross
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back up, how did you know that Train 193 passed by Harold
at 12:12?
A At 12:12? If I'm not certain of the time that a
train is clocked by Harold, then I will ask C Tower, "What
time did it come by?"
Q In this case you asked C Tower?
A I don't lave to call. We have a direct line to
both of us.
Q You speak to him over the squawk box?
A Yes. I'd ask him, "Vinny, what time did 193 come
by Harold?”
Q And he arrived at 12:16?
A That's correct.
Q Where were you when he arrived at 12:18?
A When he arrived at 12:18, obviously in the office,
Q Were you also in the office at 12:21 when Train
400 left?
A No, I think I was out of the office when Train
400 left.
Q Where had you gone at that point?
A As a matter of fact, I know I was out of the offii
right after the 12:18 recording here, a passenger wanted to
catch Train 400 and had something in a locker and couldn't
locate the locker, and I ran out to show the locker or to fin
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______FOI rv S'111 A Kl- Nl:\V _YQRK_ N Y.ZaU.1123. ....
[ 10 5] A - 3 1 01 ellt ' Harris-cross
2 the locker for the passenger.
3 Q The wording "Cancelled" there, next to PJ 1230,
4 is that in your handwriting?
5 A Yes.
6 Q Do you have any recollection when you wrote that,
7 when you were advised that that train was being cancelled?
8 A No, I don't.
9 Q Who would have told you that the train was
10 cancelled?
11 A Eddie Lehr.
12 Q And you have no idea when he told you it was
13 being cancelled?
14 A No, I don't. As a matter of fact, I know it was
15 much later than that because he wasn't certain as to whether
16 he was going to run that train or not.
17 Q Do you have any recollection between 11:55 and
18 12:21 of any other specific errands that you went out of the
19 office to perform?
20 A I went out of the office numerous times during
21 that period. Some specific ones I did is one I just mention :d
22 t o y o u .
23 Q You helped this passenger?
24 A Right.
25 Q That was in regard to train —
A 400.
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A 3 1 1[106]
ellt 8 A 3 1 1Harris-ross
0 That was in regard to Train 400 leaving at 12:21,
right?
A 12:21. At another time I delivered the change of
line up to the ticket window.
Q In writing or orally?
A I delivered a sheet in writing to him.
Q Who did you give it to?
A The ticket clerk.
Q What's his name?
A I believe it was Carisello.
Q Were there any other ticket clerks on duty?
A Not at that time, no.
Q There would have only been the one ticket clerk
and you gave it to him in writing?
A In writing.
Generally, it is nothing more than a track sheet.
which the regular tracks are marked' over and the new
track listing is stated in that slot.
Q Can you recall any other errands that you left the
stationmaster's office for between 11:55 p.m. and 12:21 a.m.
on the night of November 5th? Can you recall any other
specific errands that you went out on?
A Yes, at one time —
MR. HOLWELL: Excuse me, you mean November 9th.
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[107]
el It 9 Harris-cross A 312
MR. STOKES: November 9th - 10th.
A At one time a passenger called me and asked me
to he felt he had left his house keys attached to the key
that he used to open the locker, and asked me to see if he
had. lie gave me the locker number. X went over to see whe
ther he had or not, but it wasn't there.
Q Who had called you?
A A passenger.
And at one time the usher reported that the light
was out on Track 15. I went out to check on that. There
could have been many others.
Q This all was happening between 11:55 and 12:21
a.m. ?
A No, between that period and about 12:25,
thereabouts.
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hp ja 1 Harris cross
f t 3 1 3
Q I am specifically interested between 11:55
and 12:21, what happened in there. I am not interested
in anything after that.
Which are the ones that happened in this
period?
A The ones I stated to you. Once I went out
12:11, checking on the 12:11 train.
Another time, to find a locker for a passenger
to catch Train 400, and to, also — to check at one time --
no, to deliver the change of tracking to the ticket
collector during that period.
Q Now, it is your testimony that during this
period from approximately 11:45 p.m., November 9th,
to 12:21 a.m. on November 10th, you didn't hear any
announcement over the speaker system from A Tower that
Line 3 would go out after.Train 400?
A No, I didn't-
Q And you say that Mr. Lehr didn't advise you at
approximately 12:05 a.m. that Line 3 would go out after
Train 400?
A He didn't.
Q Did ?lr. Lehr ask you to advise the crew of
Train 489 to pull west on arrival?
A He didn't.
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[109]
hp ja 2 Harris cross
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Q You never heard Mr. Civitillo at C Tower
acknowledge to A Tower that Line 3 would go out after
Train 400?
A No, I didn't.
Q You indicated you had made a phone call to
A Tower to try and find out the specific time.
f
Did you make just one phone call?
A No, I made two.
Q When did you make the second phone call?
A One shortly after I spoke to Mr. Lehr at
about 11:45, and the next after I spoke to Mr. Lehr at
about twelve -- between 12:05 and 12:15.
Q Coming into the other trains, I think we are
agreed 1691 turns for 1602; is that correct?
A That is correct.
Q And 1691 is scheduled normally for Track 18?
A That is correct.
Q But in this case, of course, it went into
Track 16, right?
A Correct.
Q Now, as I understand, you were in communication
with the engineer and conductorof Train 1691?
A Yes, at about 12:48.
Q Did they first communicate with you or you
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[110]
hp ja 3 Harris cross
A -315
you communicated with them?
A
Q
A
Q
A
Q
with them?
A
in on Track
out of Line
Q
in any way?
A
Q
testimony, you recognized right away that it hadn't pulled
west sufficiently, is that correct?
A Correct.
Q You did that by looking out the window?
A Right.
Q You could still see part of the train so you
knew it hadn’t gone far enough west?
A Right.
0. And what time was that?
%
SOUTHERN DISH'ICT COURT REPORTERS. U:5. COURTHOUSE
They communicated with me.
To ask why they were being held?
Right.
And your reply was?
"We'll get you in as soon as possible."
Then what was the next communication you had
Right following that I asked him, when he came
16 to pull west and clear the signal to go east
1.
Did he acknowledge the receipt of the order
It was the same conversation. He said okay.
When 1691 pulled in, as I recall your direct
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[ 1 1 1 ]hp ja 4 Harris cross
A That was 12:54.
Q Did you have the usher give any instructions
to that crew at at that time?
A I told the usher to announce the 1091, to
pull west. I also had an SOP, both ushers that work
with me, and whenever we have a light that's out of
service and a train comes in on 16 and 17, to be ready to,
if I miss the person on the radio, he doesn't pull
west,to make an announcement all over the station, have
him pull west.
Q That was immediately followed along by
Train 195, is that correct? Train 1691 was immediately
followed in by 195?
A That is correct.
Q And did 195 pull west?
A 195 pulled west. But it, too, didn't —
Q Didn't pull sufficiently far?
A Yes, didn't pull sufficiently.
Q Were you in radio communication with the
crew of 195?
A With 195?
Q Yes.
A I tried to get a response from 195, but got
none.
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A ' 3 1 7
normally relieves me.
Q The log books would show who relieved you,
wouldn’t it?
A Not particularly -- yes, if we look well enough.
Q Actually, it is not important who relieved you.
As you left, though, and before you left, you told Mr. O'Bri
and Mr. Rizzacasa about the troubles you had had that night,
and explained about A Tower, is that correct?
A Right.
Q When you came back in that next night, you say
Mr. Bloomfield told you that Mr. Gaynor wanted a report?
A That's correct.
Q Did he explain in any way why Mr. Gaynor wanted a
report?
A No, he did not.
Q Did you have only the one conversation with Mr.
Bloomfield that night?
A That's all that I can remember.
Q Did he indicate in any way that either he or Mr.
Gaynor had conflicting reports or conflicting versions from
your version, from C Tower, or from Mr. Lehr?
A No, he did not.
Q So then you relieved Mr. McKenna and took over
and you had been advised that Line 4 was going out of service
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J O I I Y v W A R l N i : W Y O R K . N Y - Tvl-tlUU
1 [123]
ellt 4 Harris-cross
A 31 S
What do those letters S mean?
A Simply tells me that when those trains come in
Iwe are going to swing them. That means that the yard master
|
will have a crew to move them from whatever track they come
in on, swing it over to another track.
Q So that has no reference to the Sperry cars?
A No.
Q Is there any indication on here when the Sperry
cars actually started going through the tunnels?
A No, there isn't any indication on here.
Q Do you recall when they started going through the
tunnels?
A As I recall, the first one want through, started
going through at about 1:05, as I recall.
Q ABout 1:05?
A About 1:05, I believe.
Q What line as that?
A Line 1. A Tower had already called me and informed
me of-.the fact that they would start through Line 1 and
would reach us, our tunnels over there, some time in the
later part of the morning, and we would exchange our feelings
about — we wre hopeful of the fact that by the time we
needed our tunnels for the 3 o'clock grouping, or rather we
hoped that we could get through 1:41, which is —
%
SOUTHERN DISTRICT COURT REPORTERS. U.S. COURTHOUSE
FOLEY SQUARE. NEW YORK N Y - ?9UIO:0
'•Tr-
1 [124] ellt 5 u . A - 3 1 3Harris-cross
2 Q You mean between 84 —
3 A Between 84 leaving at 1:41, before we reached me,
4 and if they had to take Line 3 out, they would take it, or
5 Line 4 out during that period of time, between then and 3
6 o 'clock.
7 Q What time did they actually reach line 3, do you
8 recall?
9 A At about 2:40.
10 Q Did you get any advance notice that they would be
11 reaching there at about 2:40?
12 A No particular advance notice, other than the
13 fact that there were indications of the movement of the Sper;-
14 car through the various lines, indicated that perhaps they
15 would be reaching Line 3 some time during that period.
16 Q When did you notify 204 of this?
17 A Notify 204 of the time that we —
18 Q About the Sperry cars and about the cancellation
19 of Line 4 and about the Sperry cars coming in.
20 A This was told them right away, the fact that the
21 line 4 cancellation had occurred and that the Sperry car was
22 going through all of the lines for that night.
23 Q You called 204 and told them?
24 A I told them, as well as Jimmy Bloomfield told
25 them.
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[125]
ellt 6 Harris-cross
A ~320
MR. HOLWELL: Your Honor, I would like to object
at this point. This doesn't have anything to do with our
direct testimony, our direct case. I never heard any allega
tion that something that Mr. Harris did with regard to this
sheet resulted in his being fired from the job the next
night.
MR. STOKES: This goes to — I am trying to
find out what Mr. Harris was doing the night he said he was
too busy to write the report to Mr. Gaynor.
THE COURT- This was discussion with respect to t>.
Sperry cars. I will allow it.
Q • 'Who did you speak to at 204, do you recall?
A Mr. Jimmy Bloomfield, to be exact. This is the
person that reported the fact that the Sperry — the Line 4
had been cancelled for that night and that the Sperry car
would run through all of the tunnels. This was done at
about 12:05 somewhere.
Q From the stationmaster's office?
A From the stationmaster's office.
Q At about 2:40, when the Sperry cars reached Line
3, was Mr. Bloomfield still there?
A No, Mr. Bloomfield was not there.
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[126] hoplt 1
Q Did you call 204 to notify them that the Sperry
cars were now going in Line 3 and it was going to be cut of
service?
Harris-cross
A Line 3. I don't recall whether I did that moment
or not, but I did inform them that it was out of service.
'Q I assume you had prior notice or notice prior to
2:40, that this would be the approximate time it would be
t»
arriving?
>
A Would you repeat that?
iQ I assume you had ten, fifteen, twenty minutes i1notice prior to 2:40 that the Sperry car would be going in the
fi
at around 2:40? i
A No, this is the time we were told the Sperry car
would be going into Line 3, at about 2:40.
Q And at that point, did you work up a new line j
up with Mr. Lehr? !
A Right.
»Q And this would have been dona somewhere between
what, 2:30 and 2:40? i
!A In that time.
. *
Q What time did you take your luncheon break?
A Shortly right around in that time. I vary with
. imy luncheon break.
IQ Would you have taken a luncheon break from 1:40
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[127]
hplt 2 A-322Harris-cross
2 a.m. to 3 a.m. that night?
3 A No, I don't take any lunching break during that
4 period of time. I walk out of the stationmaster's office.
5 Q But it is your testimony you ware not absent from!
6 the stationmaster's office btween 1:40 and 3 a.m. in the
7 morning for that whole period of time?
8 A Wait a minute now, excuse me. What is your
9 question?
10 Q I am asking if you are stating at this time that
11 you were not absent the entire period from 1:40 am. to 3 a.m.
12 from the stationmaster's office.
13 A I am not saying that. I was in and out of that
14 office during that period of time.
15 Q You are aware, you are under oath, Mr. Harris.
16 A I know.
17 THE COURT: He knows.
18 Q And that is under penalty of perjury.
19 A Yes.
20 Q Just when did you take your lunch break that
21 night? You normally do take a lunch break, during the
22 night?
23 A Yes, I do.
24
Q When did you take your lunch break?
25 A It varies, but it is generally during that period
%
'
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FOLEY SQUARE NEW YORK NY. - 791-1020
Harris-cross
A - 323kplt 3
period from 1:46, after the 1:46 equipment train leaves. It
left that night at 1:43 and during that period I, with a
radio in my hand, and with the cleaners coming into the office
Iito clean the office, I walk out of the station. That
particular time during that period, I walk over to the station
check the station, I go to the bathroom, I check various
trains if there are any on Track 20 or 21.
Numerous functions during this period of time.
During also that same period of time, I get myself a sandwich
and have something to eat.
Q Who relieved you that next morning? This would be
the morning of November 11th.
A The morning of November 11th, which would be
Thursday morning?
Q Yes.
A I think there was Tony — he is a new man, an extra
man, and I don’t know his name too well, Tony Costa, or
something of that sort.
Q Did Mr. Rizzacasa come in that morning?
A Yes. Mr. Rizzacasa and Mr. O'Brien.
Q And first you tried to write the report there?
A That is correct.
Q And you weren't able to do it and you went then
i
to the usher's room?
%
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[129]
hplt 4 Harris-cross
That is correct.
Approximately what time would that be?
That was about 7:30.
And how long were you there? Until around
A - 324
8 o'clock?
A Well, I was in and out. I went there, put my
Eureka down, went to the toilet, had a cup of coffee and
came — well, I left there to go home on the 8:10 train.
Q When you were in the usher's room, where were you,
.at the table?
A Yes, that's correct.
Q And you caught the 8:10 train and approximately
what time did you get home?
A Approximately 9 o'clock.
Q What time would you have called Mr. Rizzacasa?
A Shortly thereafter.
Q About five or ten minutes after 9, approximately'
A About that.
Q That night, when you came in and talked to Mr.
Gaynor, did he ask you anything about delays to 1691 as
well as the delays to Train 82?
A No, he didn't.
Q How about Train 1602, did he ask with respect
to that?
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[146]arcg L e h r - d i r e c t
A- 325
MR. IIOLWELL: We call Mr. Lehr who is an employee
of the railroad.
E D M U N D L E H R , called as a witness on behalf of
t.he plaintiff being first duly sworn was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. HOLWELL:
Q Mr. Lehr, you are employed by the railroad?
A Yes, sir.
Q How long have you worked for the railroad?
A The Long Island Railroad?
Q That's right.
A For ten years.
Q Before that you worked for the Penn Central?
A Yes.
Q How long did you work for the Penn Central?
A 26.
Q You worked 36 years altogether?
A Right.
Q How many of those years did you serve working as
yard master?
26.
Q That is the job you hold now, yard master?
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[169] /I 326
rk: mg 6 Lehr-di rect
A No.
Q Visually. You can tell by asking C-Tower?
A Yes.
Q Can Mr. Harris in the assistant stationmaster's
office tell whether a train is 2 feet foulinq?
A I don't know.
Q In fact, isn't it true from the assistant station
master's office you can only tell if it is fouling if you
see part of that train extended in front of you and if
you don't see the train in front of you, you know it is
west but you don't know if it is far enough west?
A That is right. »
Q So even in a situation where the engineer's
been contacted, you make it a general practice to make
sure on 16 and 17 it is in clear because you will never
know whether or not it is fouling by 2 feet or 3 feet be
cause they have to get so far west to get up line 1?
A That is right.
0 By the way, checking with C-Tower on 16 or 17
is part of your job, isn’t it?
A Yes.
Q Other than asking C-Tower to check to see
whether or not there is a foul, will you also make a visual
check of the tracks that you can see?
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right?
[181]
rk:mg 18
3 2 7
Lehr-direct
' A Yes.
Q And it departed on track 16?
A Yes.
Q When 1691 got out of the tunnel on its way
into New York and was just about to get into the station,
was it held out of the station?
A Yes. I held him out. I was waiting for 82 to
go out.
Q You held it out, is that right?
A That is right.
Q And it was your decision to hold it out?
A Yes.
Q And you say the difficulty was that you were
holding it out because of 82?
A 82, right. I found out he was fouling.
Q When did you find out he was fouling?
A At leaving time.
Q 1 2 :4 1 ?
A That is right.
Q Let me ask you whether or not train 1691 which
was going to come in on 16 could have come in before train
82 left on 17? Could it have?
A Yes, it could have had.
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[182]
rk:mg 19 Lehr-direct
0 But you decided not to do that?
A No, because I wanted to get 82 out of there
not too late.
A - 328
0 And you decided not to do that, as I recall,
because you thought you were going to be able to get 82
out of there within two or three minutes?
A That is right.
Q Actually it took 11 minutes to get 82 out?
A Yes, because the engineer wanted another brake
test.
Q
A
Q
So it took a little longer to get out?
Yes.
If you had to da.it over again, would you have
brought 16 in first?
A I would have brought it on my side.
Q You would have brought 1691 in? -
A Yes, on my track, then swing it.
Q . If you knew it was going to take 11 minutes
to get 82 out —
A I could have brought it in on my side so nothing
would interfere with him.
Q Why didn't you do that?
A At the time after a while I asked for 1691 and
Vinnie said he had his interlock and with the motor car
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[183]
rk:mg 20 Lehr-direct
A , - 329
going out and he didn't want to bring him in.
I said, "All right, wait until 82 goes, then
bring him in on 16."
Q Let me ask you again, forgetting tracks 18,
19 or 20 - if you knew that the train on 17, train 82, was
going to be 10 or 11 minutes late instead of 2 or 3 which
you thought, would you have brought 1691 in first on track
16?
A Yes, I would have.
Q In deciding to hold 1691 out, did you consult
at all with Mr. Harris?
A No, not that I remember.
Q You didn't?
A No.
Q It was your decision?
A Yes.
Q The delay was your responsibility?
A That is right.
Q Were there trains caught behind 1691?
A Yes, train 195.
Q And that was in the tunnel behind 1691?
A That is right.
Q And the reason 195 was delayed was because it was
stuck back there?
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[184]
rk:mg 21 Lehr-direct
A 330
A Yes.
Q And that had nothing to do with Mr. Harris?
A No.
Q
MR. STOKES: Objection.
Did Mr. Bloomfield or Mr. Oaynor ask you whether
or not it was you that decided to hold 1691 out of the statior
A No.
Q And you never told them, I guess, because it
was an arriving train and you were not too concerned with
arriving trains?
A Yes, I am concerned about arriving trains.
Q But you didn't mention anything to them about
it? -
A No.
Q
*
After 1691 arrived, and this is the train that
is going Vto go out as 1692, were you ever advised that while
1691 pulled west, it didn't go all the way west?
A Yes.
Q Who told you that?
A Mr. Harris.
Q Did C-Tower advise you of that at all?
A No.
Q What did you do when Mr. Harris advised you of
this?
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[185]
rk:mg 22
/V 331
Lehr-direct
A I sent a crew over to pull it west.
Q Thereafter, did Mr. Harris also advise you
that 195, while it pulled most of the way west had not
gotten all the way west?
A Yes. I heard him over the PA system.
Q And you heard this after you heard about 1691?
A No, 195 was first.
Q You heard about 195 first?
A Yes. I didn't hear nothing about 1691 until he
told me at one o ’clock or 1:05
0 It is your best recollection it was one o'clock?
A Between 1:00 and 1:05.
Q Let me read back to you some of your deposition
testimony on page 29, line 4:
"Q When was the first you heard that train was
not clear?
"A One o'clock. 195 had come in after him and
Mr. Harris told me he wasn’t in the clear so he went over
and pulled him in the clear.
"Q How did you find out 1691 was not in the clear?
"A Mr. Harris mentioned it that he wasn't in the
clear to go out line 1 and it was one o'clock."
Does that refresh your recollection it was one
o'clock and not 1:05?
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A All riqht, one o ’clock.
[186]
rk:mq 23 Lehr-direct
A 332
Q Did C-Tower advise you whether or not Train 195
was in the clear?
A Yes.
Q Hadn’t you asked C-Tower earlier in the evening
to tell you whenever the line closes to let me know if any
trains are not in the clear?
A Yes.
Q You asked C-Tower to do that and that was be
fore the line closed?
A Yes.
Q And C-Tower didn't tell you whether or not 82
was in the clear?
A No.
0 And he didn't tell you whether or not 1691
was in the clear?
A
0
wasn’t all
A
Q
A
Q
minutes to
No. Mr. Harris told me.
After you heard from Mr. Harris that 1691
the way west, what, if anvthinq, did you do?
I sent a crew over.
Sent him over right away?
Yes.
And you say it normally takes three or five
pull them west?
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[187]
r k : m g 24 Lehr-direct
A *3 3 3
A Yes.
Q The train was delayed, wasn't it?
A Yes, five minutes because when my engineer got
over there, he called me up on the phone, the radio phone,
and said he couldn t pull it wsst because the doors were —
open and they would not close the doors until leaving time.
Q The train crew would not close the doors for
your brake crew?
A To pull it west.
Q Did you tell your drill crew to tell the train
crew to close the doors and let’s get it moved west?
A Yes, I told htem to tell them to close the
doors.
Q And they refused to do that.
Do you know if that had anything to do with
the fact there were three brakemen on that train and there
wasn't any conductor on it?
A I didn't know about that.
Q You didn't know about that?
A No.
Q The train crew, whether it had three conductors
or three brakemen or two conductors and one brakeman, if
they had followed your directions, would that train have
been pulled west and ready to go before departure time?
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[188] rk:mg 25 Lehr-direct
A Yes.
Q In fact, it would have been ready at 1:03 or
1:05?
A No, maybe 1:07 it couldhave been ready.
Q During the time you were having problems with
the train crew for what is now 1602, did you have any con
tact with Mr. Harris during this time, and that would be
between one o'clock when you say Mr. Harris first contacted
you and 1:16 when the train left five minutes late?
A No.
Q You didn't have any contact with him at all?
A No.
Q You didn't advise him you were having troubles?
A No, no. I didn't.
Q Mr. Harris didn't have anything to do with the
delay of the departure of 1602, did he, the drill crew?
A No, he didn't know he was fouling at the time.
The reason for the delay was they would not close the doors
0 And that wasn’t Mr. Harris* fault, was it?
A No.
Q If they had closed the doors, it would have
gone out on time?
^ Yes, we could have pulled it down, they could
have opened it up again and got out.
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[189] rk:mq 26 Lehr-direct
0 Did Mr. Bloomfield and Mr. Haynor ever ask you
who was the cause of the delay of 1602?
A No. Mr. Bloomfield did. Just that I said - -
it wasn't in the clear at the time and we had to pull it
west.
0 You didn't tell him anythinq about the fact that
the train crew refused to close the doors?
A Yes. I told him they would not close the doors
and we couldn't pull it down.
Q At the same time did you tell him it wasn't
Mr. Harris' fault that the train didn't get pulled west
on time?
A I didn't mention that, but it wasn't his fault.
Q Did they ask you whether or not it was his
fault?
A No.
Q Let me qo to Train 82 which was the last one
of the eveninq, I quess. That one arrives as train 4̂ ,
is that right?
A Yes.
O It generally arrives on track 17?
A Right.
0 It arrived on track 17 that night?
A That is right.
S O U H M R N DISTRIC T COURT RM'ORTTRS. U S COURTltOUM-
[191]
rk:mg 28 Lehr-direct
A 336
the platform?
A Yes.
Q And you knew it was on the east end of the plat
form, right?
A Yes.
Q You say that the decision to close line 3 that
night was made by — let me strike that, I didn't ask you
about the night of November 9, 10.
Whose decision was it to close line 3 on the
evening of November 9 and the morning of November 10?
A A-Tower.
Did you have any discussions with A-Tower about
that?
A Yes, at 11:45.
Q 11:45 you called A-Tower?
A Yes.
Q And you say that you then decided to take line
3 out?
A Yes. I gave him a line up and said we decided
after the 12:21, 400 goes off of 19, we would take line 3
out.
Q What method of communication did you use?
A On the central. On the dial phone.
0 Now your next communication was when, 11:55, you
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[192]
rk:mg 29 Lehr-direct
A* 3 3 7
say?
A With who?
Q You tell me.
A Yes. On 11:55 over the squawk box, I mentioned
* i
.to C-Tower and the stationmaster that line 3 would go out
Iafter 400 left.
Q Then after that you say you had a dial tele-
j
phone conversation with Mr. Harris at about 12:05?
A 12:05, right. j
i
Q At 12:05 you gave him a line-up of trains?
i
A Yes, and also after five o'clock we would play 'l
•I- wit by ear. -■ . . j
Q After 12:05, getween 12:05 and the time of the j
departure of train 82 at 12:41, did you have any further
discussions with Mr. Harris?
A N o .
Q You didn't and you didn't have any discussions
with him on either the dial phone or squawk box, right?
A Not after I gave him the line-up.
Q Between 12:05 and 12:41, did you have any dis
cussions with C-Tower with regard to the closing of line
3 or the moving of trains?
A Yes. Around 12:19 Vinnie says that after 400
goes, he is going to put a hold on 19 track for the motor
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[195]
rk:mg 32 Lehr-direct
fV 338
important communication to Mr. Harris and Mr. Civitillo
at 11:55 on the squawk box?
A No.
Q Does this raise in your mind some doubts that
at 11:55 you told them when the line was going to go out?
Not whether you had a communication, but when the line was
going to go out?
A No. I told them.
Q Do you recall, Mr. Lehr, whether or not you had
a conversation that very evening with Mr. Tietjen of 204
an<3 with Mr. Harris at the same time with rgard to
thedelay of train 82?
A Yes.
Q You did?
Yes.
He wanted to know what was the cause of it going
out late.
Q Didn't you tell Mr. Tietjen at that time that
around 12 o'clock you and A-Tower were in communication,
that A-Tower didn't know when the work crews were going to
be ready or when you were going to close line 3, and some
time after 12 o'clock you and A-Tower then decided what was
going to be the last train out of line 1?
A I don't remember that.
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[196]
rk:mg 33 Lehr-direct
As- 339
Q Let me read to you a portion of the transcript
of that conversation which was recorded ~~
MR. STOKES: I am objecting to the transcript
as presented to me. It is different fom the one we have
had and had Mr. McGowan check.
If they are going to use one, I prefer an ac-
curate transcript be utilized.
tence I
MR. IIOLWELL: If we can look at the one sen-
want to read page 2, the middle of the page —
MR. STOKES: There is no correction.
0 Let me read your statement to Mr. Tietjen on
that very night.
A All right.
Q At 12 o'clock he didn't hear nothing as yet.
Then I told him at 12 after 400 left, he can have line 3
out. So he said OK but I guess he didn't qet the fellows
ready until that time."
Ooes that refresh your recollection whether
12 o clock A-Tower did know whether he was going to
have the line ready —
MR. STOKES: Objection. He is not referring
to A Tower.
A
THE COURT: The witness has said "No."
No, we knew before that that the track was going
o u t a f t e r 4 0 0 l e f t .
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arc9 Lehr-direct
Q Let me read the sentence:
At 12 o'clock he didn't hear nothing yet."
Is that{he A-Tower?
»
MR. STOKES: May 1 suggest your Honor if the
transcript is going to be utilized that it be marked and j
that it be shown to the witness? Just throwing things out j
at him —
MR. HOLWELL: The witness is doing fine by him
self.
MR. STOKES: Show him the transcript.
THE COURT: You can put in the balance if yju
like. He asked about it and in the doctrine of completeness1
you can put in the balance.
MR. STOKES: He's just throwing things out.— j
THE COURT: Gentlemen, you are not going to
argue with each other. Address the Court and let us not
have that. You are competent counsel and know that. Don’t
talk to one another.
The "he" you are referring to is A-Tower, right? j
A Yes.
Q And you told him at 12 after 400 left he can
have line 3 out. That "he" is A-Tower, right?
A That's right.
Q Talking to him at 12 o'clock or sometime there-
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[198]
arcg Lehr-direct
A 3 4 1
after?
A No, talking to who?
Q A-Tower.
A No, I talked to him 11:45.
Q ' You are saying you didn't talk to A-Tower at 12
o'clock or thereafter?
A No.
fin. STOKES: Your Honor, I object to any further
questions unless the witness be shown the transcript.
He is obviously confusing him at this point. Unless the
witness can see — -
MR. IIOLWELL: I have no further questions.
MR. STOKES: He doesn't know who the he refers
to whether it is Mr. Harris or A-Tower.
THE COURT: At 11:45 what did you do?
THE WITNESS: I talked to A—Tower and he made up
the whole line up of the trains.
THE COURT: At 11:45?
THE WITNESS: Yes, after 400 left.
THE COURT: What did you do after that?
THE WITNESS: Then I told over the squawk box to
C Tower and the station master that line 3 would go out
after 400.
THE COURT: Right after that?
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[199]
arcg Lehr-d irect h- 34 2
THE WITNESS: About 11:55.
MR. STOKES: The point is, your Honor, Mr.
Holwell is very obviously trying to throw what he claims
are inconsistent subsequent statements and the witness hasn't
seen it and doesn't know who he refers to, unless he sees
it. It is just tricky questions from counsel.
MR. HOLWELL: The witness identified --
THE COURT: Don't talk to one another, there is
no necessity to argue with the lawyer. You made your
objection and that is not necessary.
Q Let me retrace your statement.
"So he said okay but I guess he didn't get the
fellows ready until that time."
The fellows are the work crew?
A Yes.
Q Your recollection of that 11:55 conversation,if
I told you, Mr. Lehr, that there was testimony that there
was a conversation about 11:55 but the substance is youwere
on the squawk box to C-Tower and said, "Vinny, let me know
if there are any trains fouling after that line closes" and
Mr. Harris said, "Yes, I second that."
Do you remember that?
A Yes.
Q About 11:55, wasn't it?
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[200]
arcg Lehr-direct A - 343
A I told him line 3 was going out.
Q In the same conversation?
A Yes.
0 Would i 1 n ffn-1- „-•< 1 __, • , r i .V ..wna.va u u c c i your recollection if I told you
Mr. Civitillo testified under oath he doesn’t have any
recollection of your contacting him at 11:55 and telling
him that the line was going out after 400 left?
. A No.
Q It wouldn't affect your recollection?
A No.
Q In this conversation you said you had do you
know whether or not C-Tower heard you?
A That I wouldn't know.
Q You don't know whether or not C-Tower heard y>u
because it was on the squawk box?
A That is right.
Q Do you know whether or not Mr. Harris heard you?
A I don't know either.
Q Your best recollection is you don't know whether
or not either heard yju?
A That is true. Generally they are in their office.
Q But you don't recall any response by either of
them to that?
A No.
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arcg Lehr-direct A - 344
Q You say you called Mr. Harris at 12:05 and gave
the line up?
A Right.
Q Let me show you a copy of a document marked into
evidence as Plaintiff’s Exhibit 1, which is the station
master's record sheet of trains arriving and departing
on the evening of November 9 and the morning of November 10.
Do you remember looking at that document at your
deposition?
A No.
Q Take a close look at it if you would, Mr. Lehr,
and tell me that if you gave Mr. Harris the line up, what
was the first train that you mentioned to him?
A 1689.
Q The first train you mentioned, wasn't it 193?
A Let's see. No, it could have been.
Q It was in fact 193?
A it could have been.
Q It was, wasn't it?
A All right, I say yes.
THE COURT: Just don't say it because somebody
puts it in your mouth. Do you recall or don't you?
THE WITNESS: I don't recall.
THE COURT: Don't hesitate to say you don't recall.
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[202]
arcg Lehr-direct A 3 4 5
We are here to hear what you really recall. If you recall
something, fine. If you don't recall, don't hesitate to
say so.
THE WITNESS: All right.
MR. 1IOLWELL: Could we take a short break for a
few seconds?
THE COURT: All right.
(Recess.)
BY MR. HOLWELL: , '
Q . Mr. Lehr, before we broke I sensed that you weren
quite sure whether or not 1689 or 193 was the firsttrain
that you gave a track change for.
A I don't remember.
Q Let me see if I can refresh your recollection.
THE COURT: Would it help to look at the station
master's sheet or not?
THE WITNESS: No.
THE COURT: It doesn't help?
THE WITNESS: Ho.
Q Would it help if I point it out to you that the
station master sheet shows 1689 was scheduled to come in on
track 19 and came in on the same track 19 and that is no
track change? .
A No, because this makes 400 out. We were going
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[203]
arcg Lehr-direct ^ 346
to take the tunnel out after that left.
Q You didn't make any mention of 1689? The first
train you did mention was 193?
A Right.
What did you tell him with respect to 193?
He was going on 15 track for 802.
What time did 802 depart?
1:11.
Q
A
Q
A
Q
A
Q
A
0
A
Q
The next track change you gave him —
THi: COURT: 1:11 or 1:01?
THE WITNESS: 1:01.
The next train was 1691, right?
No, 489. I gave him a line up.
What did you tell him about 489?
Going on 17 and pull it west.
It always comes in on 17?
Right.
And you still gave the regular line up?
1689 came in on 19 just like it always does?
A Right.
Q You didn’t mention 1689?
A No, because it goes out line 3, mark 400 out.
Q What difference does it make with 489 whether or
n°t it is line 3 or 1 if it still goes out on track 17?
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[204]
a r c g L e h r - d i r e c t
A- 3 4 7
A I am giving the line up.
Q Are you sure you specifically mentioned 489?
A Yes.
Q Let me read to you some of your deposition
testimony, Hr. Lehr and ask you if that changes your recol
lection of the events, this is at page 74 line 8:
"Q Did you mention anything about 489 since
that was not changing tracks, that you were just going to
pull west?
answers?
*A Mo.
"Q So you did not mention anything specifically']
"A No."
Did I ask you those questions and you gave those
A Yes.
Q Those answers were the truth when you gave them.
right?
A Right.
Q So you didn't mention 489 specifically?
A I don't recall.
Q You don't recall, is that your testimony?
THE COURT: When you say you gave the line up,
what does that mean?
•
THE WITNESS: The trains, the way they were
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[205]
arcg L e h r - d i r e c t A - 3 4 8
coming in from westbound, line 193.
THE COURT: You gave the line up what time?
THE WITNESS: 12 : 05.
THE COURT: Did you mention all these trains when
you gave the line up?
THE WITNESS: Yes.
Q But you didn't mention 489?
A Yes, I did. It went in on 17 track. I told him
pull it west.
Q You specifically told him on 489?
A Right.
Q Even though at your deposition you didn't say
anything about 489 because you assumed he was going to pull
it west?
A I don't remember about that.
Q Let me read some more of your deposition on page—
MR. STOKES: May I suggest page 72 on his deposi
tion?
MR. HOLWELL: Page 72 precedes 74 I am aware of
that.
THE COURT: I recognize that, Mr. Holwell and
Mr. Stokes and you are not to talk to one another.
MR. STOKES: I am sorry, your Honor.
THE COURT: You will have the opportunity. I
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[206]
a r c g L e h r - d i r e c t A - 349
don't know why you have to do this. You will have an
opportunity to go through the deposition.
Q Top of page 74 or 73 line 24 you say you gave him
the line up at 12:05.
A I told him to communicate with the engineers
to get everything pulled west. So then I presumed he would
tell everybody to go west. If he couldn't get in touch with
the engineer he would call and tell they weren't clear and
I could have it pulled west.
"Q You mentioned nothing about 489 because there
was no change?
"A No.*
You weren't lying when you answered that question,
No.
, You didn't tell him anything specifically about
No.
What was the next train you gave him?
After 489?
Yes.
1691.
What did you tell him?
When he gets on 16 pull west.
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Q
489?
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[207]
arcg Lehr-direct A - 350
Q
A
Q
A
Q
west?
A
Q
A
Q
line 18:
to pull
A
Q
Anything about track changes on 1691?
Yes, that he goes on 16 track.
Instead of 18 track?
Right.
But you didn't tell him to have 1691 pulled
Yes.
Didn't you presume?
No, I told him don't forget to get him west.
Let me read your deposition testimony, page 72,
"Q What was the next train?
1691 that he was going in on 16.
Just that he was going in on 16?
Yes. I figured that he knew that he had
Do you remember me asking those questions?
Yes.
And do you remember those answers?
"A
" Q
"A
west."
A Yes.
Q That was the truth when you answered those
questions?
A Yes.
Q That is the truth now, isn't it?
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arcg Lehr-direct /s- 351
A Right.
Q After 1691 if you look at the station master's
log, what was the next train entry you gave him a track
change for?
A 195, 17.
Q Instead of 19?
A Right.
Q
A
Q
A
the tower
Q
gave him,
After that?
1601.
What did you tell him about that?
I asked — that was going to be a PJ and I asked
if I could have 14 track and they gave it to me..
I want to go back to the first track change you
the first line up.
The first entry in the line up is train 193,
right?
A Yes.
Q You told him it was coming in on 15?
A Right.
Q Did that train depart before or after 1 o'clock?
A After 1 o'clock.
Q Mr. Lehr, I don't question about 12:05 you had
a conversation on the dial phone with Mr. Harris at which
time you gave him the line up of trains beginning with 193
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arcg Lehr-direct A 352
which departed at .1 o'clock.
hut isn t it a fact that when you gave him that
line up you still didn't know exactly when that line was
going out or what the last train to depart from line 3 was
going to be?
A Yes, I did. After 400 left.
Q ho you recall having a conversation —— X guess
you already did recall —— do you recall this conversation
you had with Mr. Tietjen?
A Yes.
Q Mr. Harris was party to it too? I don't want to
confuse you so why don't you take a look at this and I want
to direct your attention to page 2, if you turn to page 2.
THE COURT: What is the exhibit number?
MR. HOLWELL: Number 5 I believe — Exhibit 4.
MR. STOKES: There are a number of changes in
that paragraph. I don't know what you are referring to but
there are changes.
MR. HOLWELL: I don't have any problem with that.
We will read it your way.
Q Let me refer you to page 2 Mr. Lehr down at the
bottom. EL are your initials. You said:
"Q At 12 o'clock he" — that means A-Tower —
"didn't hear nothing as yet. Then I told him" —
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[216] k 3 5 3
6 Lehr-direct
Q What did he ask you to write the report about?
A About 82.
Q Any other train?
A No.
Q Just 82?
A Yes.
Q That was the only one?
A As I recall.
Q That is the only one you recall him being inter-
in?
A That is right.
Q When did you write the report?
A November 11, after the 321 train left. You
have an hour in between. There is nothing moving at the
time.
Q Who did you give the report to?
A When I got relieved, I took the letter upstairs
to Mr. Rizzacasa..
Q What time?
A About 7:15, 7:15. When I got home I called him
up and told him I forgot to sign my name.
Q That is why your name isn't on the bottom?
A That is right.
0 Had you ever been on the job when there had been.
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[ 217 J
ek:m 7 L e h r - d i r e c t
A - 3 5 4
train delays such as there was on the evening of November 9,
the morning of November 10?
A Yes, I have been on the job when there have been
delays.
Q Let me ask you if you have ever in your entire
career working for the Long Island Railroad, ever been
asked to write a report, a written report, about the de
lay of a train?
A No. After I am relieved, I generally go upstairs
and tell them orally what has happened.
Q Have you ever been asked to write a report to
Mr. Gaynor about the delay of any train for as long as you
have worked on the Long Island Railroad? -
A No.
Q In your report, you don't mention train 1691
and 195 because Mr. Bloomfield wasn't interested in those
trains?
A No, he just wanted to know what happened to 82.
After you gave the report to Mr. Rizzacasa, did
y hear anything further with regard to your report? Any
body get back to you about what was in it or wasn't in it?
A No.
Q Anybody complain to you it was incomplete?
A No.
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Lehr-crossrk:mg 16 Lehr-cross /V 355
after 400 leaves, he has a hold on 19 track for the work
train, track car, rather.
Q In other words, you had communications with C-
Tower and it was from C-Tower that you learned when the
track gang was ready?
A Right. As soon as 400 left that they would be
ready to go out there.
0 In fact, when train 400 left, did C-Tower put
a hold on track 19?
A Yes, he did.
Q What is the significance of putting a hold on
[226]
track 19?
A That nobody can go use that track either way,
west or east.
Q And what would be the purpose of that. Who
would be the only ones permitted in on that track?
A Just the track car.
Q How did C-Tower communicate this hold to you,
over the squawk box?.
A Yes, over, the squawk box.
Q Anybody in either the stationmaster's office
or your office knowing that line 3 was going out of service
somewheres along the line, when they heard that hold on
track 19, they would know that this means that the work
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[ 2 3 5 ] A ' 356arcg Lehr-cross
MR. HOLWELL: We have the tape right here.
MR. STOKES: It is not the original tape.
THE COURT: I would just as soon hear the
original, I think it is better.
MR. HOLWELL: We have no reason to believe —
the fidelity is fine but if you prefer to wait —
THE COURT: It may be better than the other but
usually I go by the original first and if we have a problen
them we can see what else we can do.
Do you have any other witness or is this the
last witness?
MR. HOLWELL: No, this is the last witness. We
might have a rebuttal witness.
THE COURT: All right. I don't know what the
situation is with the criminal trial that is scheduled. It
is a one-day trial.
I
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MR. HOLWELL: Your Honor, as to the housekeeping
|matters, the first thing I think we would just like to
place on the record and Mr. Stokes understands how you want
i
to apply the usher job in the terminal, these letters with
j
respect to the understanding that we are not preventing
him from so bidding.
MR. STOKES: I so agreed.
MR. HOLWELL: We would like for the record to
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[239]
rk:mg 2 Segreto-direct k 3 5 7
We have one other housekeeping matter.
We would like to renew our offer of Mr.
Civitello’s statement —
th e; COURT: We are not going to need that be
fore luncheon recess?
MR. HQLWELL: No.
THE COURT: Remind me again.
MR.' STOKES: Mr. Segreto.
J O H N S E G R E T O , called as a witness
by the defendant, being first duly sworn, testified
as follows:
DIRECT EXAMINATION
BY MR. STOKES:
Q Mr. Segreto, by whom are you employed, and in
what capacity?
A I am employed by Amtrak as Train Director.
Q How long have you held that position?
A Approximately five years.
Q Were you on duty the night of November 9, 10,
1976?
A Yes.
Q At what location and what trip and in what
capacity?
A I worked the tour of 11:00 p.m. to 7:00 a.ra.;
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tour location, Penn Station.
[240]
rk:mg 3 Segreto-direct A -358
Q What is a work sheet or a business sheet?
A A work sheet -- it is the business of the day
which pertains to track assignments of trains, extra trains
and track work pertaining to tunnels.
Q In other words, this would indicate on any given
day as to whether line 1, 2, 3, 4 is going out of service?
A Yes.
Q Do you regularly look at it the first thing when
you come in on duty?
A Yes.
Q On the night of November 9 and 10, when you came
on duty. what did the work sheet indicate?
A It indicated that line 3 was to go out of
service at 11:00 p.m.
Q How do you go about taking line 3 out of
service? Who do you contact, who contacts you, what is
your general procedure, in other words?
A The general procedure at the beginning of my
tour of duty, which would be 11:00 p.m., at 11 o'clock I
notify the yardmaster that line 3 would be going out and
1 ask him if he has an extra NL crew which would be a
drill crew.
If he says yes, I notify C-Tower, Harold Avenue.
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[241] rk:mg 4 Segreto-direct ^
Q At this point, when you are doing this, do you
know the specific time you will be taking the line out of
service?
A • Approximately, yes.
Q Do you have a general custom as to when you take
the line out of service?
A I confer with the yardmaster on 21 track as to
what train would be the last train into line 3.
Q Has there been a general practice between you
and the yardmaster to do it after a particular train?
A Yes.
Q What train is that?
A Train 400.
. Q On this night of November 9 and 10, were you in
communication with the Long Island yardmaster shortly after
coming on duty?
A Yes.
Q About what time was that?
A At 11 o'clock. Like I say at 11 o'clock I talked
to the yardmaster and asked him if he had an NL crew and
about 11:45 I talked to Mr. Lehr.
Q The conversation at 11, that was before Mr. Lehr
came on duty?
A Correct.
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[242]
rk:mg 5 Spgrpto-direct 360
? ftt i1:.45 when you talked to Mr. Lehr, did he
call you or did you call him?
A Hp called me that night.
9 V^hat was the gist of your conversation?
ft Tfce ?8n.v^rsati?n. pertained to the lineup of
a?.4 V? £^me to the conclusion that after 400 would
l^ve, that would be the last train on line 3.
B did you dp next with regard to taking line
3 put of- service?
ft ^ ^ i ^ . t e l y . 11:S| p.n., I got on the speaker
& & ip.fe^d GrTpwe.p, .p-Tpwer pn£ Harold *venue,
-?tpr hpng Islpnd 4;00 1 payee, GrTower line 3 ypuld be
8YY 8? IPPY-ipP-.
B ?M§ YPP pt approximately. H : 55?
ft fp?5PYilripbiy-:
B P.fYpb ypu finished talking with Mr.Lehr?
ft
B Bi§ YPY FcY'eiYP pny ackngv.1 edgments from the
YPpipps towers?
ft (e-te-PY acknowledge me, FrTpwer and also Harold
B "?hip is a, 11 oyer the speaker system or sguawk
t e that you ppmrouni c a t g with these towers?
ft Yps.
B ^PPPynpd next as far- as ypur pperation in
^oypitRN pisTiucv goyai reporters, y$ courihoeese
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[243]
rk:mg 6 Segreto-direCt
A-Tower is concerned regarding line 3? Did you get any in
formation as to the track gang?
A About a quarter after 12 that night I received
a phone call that the track gang was ready to move and I
got the motor car in position on 19 track to go into line
3.
Q Did you receive any communication from C-Tower
in regard to the track gang in line 19?
A Previous to that there I had notified C-Tower.
I had asked C-Tower, rather, if 19 track was clear and if
it was, to put a hold on 19 track. That is where the track
car would be.
Q Did you receive any communication from C-Tower
when this was done?
A Yes.
Q About what time would that have been?
A That would have been about 12:20, 12:30.
Q How did you receive this communication, on the
squawk box system, or was this over direct line or what?
A It would be over the speaker system.
Q At this point after train 400 had left and
your track gang is moving on up, did you make any further
announcements in regard to line 3 going out of service?
A I got a hold of C-Tower, F-Tower and Harold
A 361
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A I had told 40 office— well, 40 office called
me and asked me what was the problem on the east end of
the stateion concerning C-Tower and I told him the situa
tion with train 82 blocking the switch so it can go line
i.
Q Did you adivse him you agreed with the yard-
master that much earlier that line 3 would go out of
service after train 400?
A Yes.
Q Did you give them any advice as to the amount
of communication you had had with various towers or any
thing?
A Yes.
Q Is this 11:00 p.m. - 7:00 a.m. tour your regular
tour in A-Tower?
A Yes.
Q And you worked as train director there for ap
proximately five years?
A Yes.
Q Have you had any prior problems in working
with or dealing with Mr. Harris?
A Yes, I had.
MR.HOLWELL: We object to this.
THE COURT: Overruled.
[ 248]
rk:mg 11 Segrcto-direct A 362
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[249]
rl"g 12 Segreto-direct A- 363
Q What kind of problems have you had?
A About two months ago, two or three months ago, I
had an incident wehre I had a new man at JO-Tower who was
just recently qualified. I believe it was line 3 that was
out of service. The Long Island trains were going on line
1 and Mr. Harris was constantly calling on the phone with
JO-Tower and in turn JO had told me he cannot make the moves
competently because of the Long Island stationmaster con
stantly calling him on the phones and harassing him.
Q Did in fact, as a result of this, a couple of
errors occur that night?
A Yes.
Q What action did you take?
A The action I took, I called Mr. Harris up on
the phone and informed him if he persisted in this manner
of harassing the fellow at JO, I was going to turn him into
ray superiors.
Q Did you actually make any report to your
superiors?
A Yes, I did.
Q Now, did you subsequently have any communication !
ith Mr. Gaynor in regard to this incident on November 9,
10?
A Yes. On November 17 he called me at home.
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[250]
rk:mg 13 Segreto-direct/cross A - 364
Q And
cated with Mr. '
A Yes.
Q Your
A Yes.
Q Did ;
to it?
A No.
MR.
CROSS-EXAMINATION
BY MR. SOLLIS:
Q Mr. Segreto, I believe you testified that you
normally worked the 11 to 7 shift as the A-Tower operator
for Amtrak.
A A-Tower Train Director, yes.
Q And you have normally worked that shift since
February or March of 1976?
A Yes.
Q In fact,you worked it for about the last five
years?
A Yes.
Q When you work, isn't it a fact that Mr. Harris
normally the assistant stationmaster for the Long Island
Railroad down in the stationmaster's office?
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[267]
rk:mg 30 Segreto-cross ^ ^ ^
A To my recollection, yes.
Q So you did have a telephone conversation with
Mr. Gaynor on November 12?
A No, it was November 17.
Q In fact, this is the only conversation you have
ever had with Mr. Gaynor or any other Long Island Railroad
representative concerning a train delay that was not at-
tributable to your own fault, isn't that true?
A Yes.
Q And you have never given a written or oral re-
port concerning the personal fault of a Long Island Railroad
employee for the delay of a Long Island Railroad train
prior to this instance?
A No.
Q You have been responsible for delays, haven't
you, Mr. Segreto?
A I am not infallible.
Q
have you?
And you have never been disciplined for a delay,
A I have not been disciplined, no. I received
reprimands, if that is what you want to know.
Q You have received reprimands?
A Yes.
Q Once again let me go to your deposition, page 55,
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Segreto-cross
A 36G[268] rk:mg 31 A 3bb
Segreto-cross
"Q Have you ever .been in any way disciplined for
a delay?
"A No.
"Q No letter,no reprimand, no suspension?
"A No."
A Pertaining to the Long Island trains, no.
.
That is what this is all about, ins't it?
Q Did you speak to anybody else- - I will just
jump around a bit.
Have you spoken to anybody else concerning your
testimony on your examination before trial between the time
that deposition was taken and today?
A What do you mean by anybody else?
Q Any representative of the Long Island Railroad?
A No.
Q Mr. Segreto, have you ever been informed by
any Long Island Railroad personnel or Amtrak personnel
that Mr. Ed Harris has complained about you?
A No.
Q Is it your testimony that Mr. Bloomfield has
never spoken to you in this regard?
A No.
Q
.
Would it refresh your recollection if I told
you that Mr. Bloomfield claims that he spoke to the
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[278] rk:mg 41 Jacques-direct A' 367
A Yhis is what I do every day.
Q Do you remember whether the train was in its
normal position or was it pulled west?
A It was in its normal position which 1691 makes
a ten-car stop.
Q Did the train go out on time? What is the
scheduling time?
A We are supposed to leave at 1:11 a.m.
Q Did it go out on time that night?
A No, we were about 11 minutes late, approximately.
Q
delay?
What happened around leaving time to cause the
A There was some question as to who was the con-
ductor, so the senior brakeman which is the only qualified
man we had on that went up to the stationmaster1s office
and called the crew dispatcher and found out that he would
be the conductor for that night.
Q Did he then return?
A Yes. He came down approximately two minutes.
maybe three minutes after departure time.
Q Before departure time, did you have any com-
munication with the drill crew?
A Yes. They told me that they wanted the train
Pulled west since we were going out line 1 and we were
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{279]
rk:mg 42 Jacques-direct
A- 368
fouling the switch and it was necessary.
Q About what time was this?
A About 1:08, 1:09, approximately the same time
that my conductor had gone upstairs. I had just lost sight
of him when the drill conductor got on the train PA and
informed me to take my key out, which I then called the
stationmaster and asked if it was possible to make the
move with the drill conductor so as to save time.
Q What did he say?
A He said, "Sure, fine.”
Q In other words, you called Mr. Harris and said.
Can I make the reverse move?”
A He gave me an affirmative on it.
0 What was the first communication you had with
the drill crew, about two or three minutes before?
A
> 1:03, 1:09, in that-vicinity.
0 About 1:12, 1:13, the senior brakeman came
down?
A Right. The doors were closed at 1:13.
Q Then what did you do?
A I had communication with the drill conductor
from Penn Central and informed him upon closing of the
doors by my conductor, he would give me three to back up
and two to stop, so as to clear the signal on the east end
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Train 1602.
Did train 1602 depart on time?
We departed late.
About how late?
Clocked out at 1:16.
Approximately what time did you report to your
Reporting time, 12:56 a.m.
What track was that?
Track 16.
Do you know what previous train the equipment
was — your train was made up from?
A No.
Q When you reported to that train, do you know
whether the equipment was in normal position or had it
. ' ibeen pulled west?
A It was in a normal position.
Q And at some time after you reported to the
equipment, you found out it subsequently had to be pulled
west?
A Yes.
Q When you reported to the equipment, did there
come a time when you had a problem as to who was going to
be the conductor of the train?
Rubin-direct A ' 369
A
Q
A
Q
A
Q
train?
A
Q
A
Q
[287]
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[288] A - 370
rk:mg 51 Rubin-direct
A Yes.
0 What was the problem?
A Three brakemen were on the job. We had to find
out who was the conductor.
0 In other words, the regular conductor for one
reason or another had marked off?
A As far as I know, yes.
Q What did you do at this time?
A I went upstairs and called the crew dispatcher
to find out who the conductor was going to be for the train.
Q What was the approximate time of this, to your
best recollection?
A About 1:08.
Q
go up?
Did you go up alone or did all three brakemen
A I went up alone.
Q You then called up the crew dispatcher.
Did you have any trouble getting the number or
making the call?
A
extension.
It took me about a minute or so to get the proper
Q
first?
Did you have any conversation with Mr. Harris
A No.
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[289]
rk:mg 52 Rubin-direct k 371
Q You had a conversation with the crew dispatcher.
What did he advise you?
A He told me I was going to be the conductor for
that day,train 1602, run 97.
Q Having finished that conversation, what did you
do?
A I went down to the train.
Q Approximately how long does it take you to get
downstairs?
A No more than a minute.
Q Approximately what time did you get back down
there, do you know?
A About 1:13.
Q What happened when you arrived back at your
equipment?
A The other brakemen called me and told me we had
to close the doors, we were going to be pulled west.
Q So you closed the doors?
A Right.
Q And the train was pulled west and you then de-
parted from line 1?
A Yes.
Q If the equipment had been properly positioned
when you qot there, would you have been more than two
SOU TH ERN D IS T RICT COURT REPORTERS. U S . COURTH OUSE
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minutes late in departing?
A Two, two and a half minutes late.
MR. STOKES: Nothing further.
CROSS-EXAMINATION
BY MR. HOLWELL:
Q Mr. Rubin, my name is Holwell, I am one of
Mr. Harris' lawyers.
When you say the train had to be pulled west,
do you know how far it had to be pulled from where it was
when you saw it on the tracks?
A No, I don't.
Q Do you know whether or not it could have been
like a half a car length?
A I didn't notice.
Q Did you notice the physical position that the
car was in,actually on the track, when you came down? Was
it by the stairs? Was it west of the stairs, east of the
stairs?
A It was by the stairs.
Q It wasn't east of the stairs?
A Just west of the stairs.
Q It was west of the stairs?
A Yes.
0 You say at about 1:08 you went up to call the
[290]
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[291]
rk:mg 54 Rubin-cross
A- 3 7 3
dispatcher?
A That is right.
Q How long did it take you to get up there^
A About a minute.
Q So you got there about 1:09?
A That is about right.
0 And it took you a couple of minutes to get in
touch with him?
A Right.
Q And you got back to the train and it was, you
say, two, two and a half minutes late because of that mixup?
A Say it again?
Q You made the phone call and you went back down
to the train and you say because of the mixup with three
brakemen, it resulted in two and a half, three minutes'
delay?
A That is what it would have taken, two, two and
a half minutes to get out of the station
0 Cauld it have been three, three and a half?
A It doesn't take but a minute to get to the phone
from the train.
Q If you didn’t actually get in touch with the
dispatcher until, say 1:10, or 1:11, as opposed to 1:09,
would that explain maybe another 30 or 60 seconds?
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[292]
rk:mg 55 Rubin-cross A- 37 4
A The phone call was recorded and it was timed
off at 1:12-1/2.
Q So you got in touch --
A It doesn't take but a minute to get from that
phone back to the train.
Q So you got in touch with the dispatcher after
the trainwas due to depart, is that right? After its
scheduled departure?
A 1 only know what time I hung up.
Q And you hung up around 1:12-1/2?
A Right.
Q When you went upstairs to call the crew dis-
patcher, you say you didn't speak to Mr. Harris?
A I don't recollect.
Q You don't recollect?
A No.
Q Were you talking to him at all?
A No.
Q Do you recollect him talking to you at all?
A No.
Q You don't recollect him asking you, "Why didn't
°me before leaving time to find out who was going
to be the conductor?"
A No.
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[302]
rk:mg 65 Lehr-redirect
A - 3 7 5
so get a crew over there and pull it out.”
Q Between 12:05 and 12:41, you didn't have any com
munications with Mr. Harris?
A Mo.
O And anything you said to the contrary was a
mistake on your part?
A Mo.
0 But you didn't have any communications, is that
right?
A No.
0 You didn't speak over the course of the night
and the morning with any of the lawyers for the railroad
about the facts of the case, the substance of your testi
mony, did you?
A Of 82, you mean? The night of November 9th?
Q Any of the events that occurred on the evening
of November 9th or the morning of November 10th?
A No.
0 Do you recall when we took a break yesterday
ln the middle of your testimony and you went out in the
hallway and when you were out in the hallway, Mr. Lehr,
were you standing there talking to the counsel of the
railroad as well as Mr. Gaynor about the facts of the case?
A No. I just asked them how I did and they said OK.
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[305]
RK:mg 69 Lehr-rccross
A 3 7 6
RECROSS-EXAMINATION
BY MR. STOKES:
0 Mr. Lehr, you did have communications on your
squawk box between 12:05 and 12:41 concerninq 439 coming
into track 17 to turn for 802?
MR. HOLWELL: Object to leading the witness.
THE COURT: I don't know why we keep going back
to areas we covered before.
Objection sustained.
We have been over this so many times. There
comes a time when cross-examination and redirect has to
stop.
We have covered so much ground back and forth,
I think we have reached the end of it, really.
Q When you said, Mr. Lehr, in response before
that you can make an educated guess, is this only if you
walk to the end of the platform?
A Yes.
MR.STOKES: All right.
(Witness excused)
MR. HOLWELL: Your Honor, we have no further
witnesses to call on our direct case.
THE COURT: You have rested?
MR. HOLWELL: We would not like to rest yet. We
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[3061
rk:mg 70
A - 3 7 7
would like to leave the record to place in it, first of
all, a statistical analysis of the breakdown by rates on
the Long Island Railroad, identical to the one we put into
the record in the Outerbridge case,
I would suggest that both parties simply stipu
late to putting that piece of evidence which was offered
and accepted in Outerbridge into the Harris record.
MR. STOKES: I would like to have a little time
to check on that, your Honor.
open, your
THE COURT: All right.
MR. HOLWELL: We would like to keep the record
Honor, to place an analysis of logbook entries
into it along the lines you suggested and, thirdly, we
may have a witness on rebuttal.
THE COURT: ■ Rebuttal you always keep open.
MR. HOLWELL: If I could ask you before we put
on the next witness, whether the Court has had the op
portunity to rule on the discovery motion.
you want?
THE COURT: Yes. What.are the two documents
MR. HOLWELL: The first document we wanted, I
guess, is the fact statements written by Mr. Civitillo
which were, as I understand them, verbatim statements of
his understanding of certain events on the night of
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[315]
rk:mg 79 Satter-direct A 378
answer "He has equipment trouble and car inspectors are
. „ Iworking on it. •
I!
"Do you have any other equipment you could give ’
to the train in particular?"
On e ,for instance, is train 82 due out of New
York 12:41. The equipment for 802 laying on track 16. Train
82 is on 17 but we require two minutes to walk the people
t
from 17 to 16, get a brake test, the train goes out six
minutes late, instead of 12:13, 14.
0 There havebeen specific instances you can recall
I
on this? !7• :i
A I assumed the present position I am in now
|
with the relief chief dispatcher Vs job around the end of
August. I was on the job approximately two weeks when
train 82 left 13 minutes late. We had no knowledge of it
in Jamaica until the operator at Harold Tower reported to
us that the train had not left New York.
I called New York and got a hold of Mr. Harris
and he told me he has trouble charging his train. I
said, "Why don't we put it over on the other equipment,"
and that is what they did, but the train left 13 minutes
late.
Are there other specific problems where
Mr. Harris has failed to perform as assistant stationmaster
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[316]
rk:mg 80 Satter-direct A 3 7 9
that you can recall?
A Approximately two weeks later on the night of -
well, that would be September 16.
We had an incident where we were still running
our Montauk trains and they were running late and we had
train 803, 1605. because the tunnel work was in progress,
we were operating against the current of traffic in line
2 westbound.
We got a 13-minute delay on train 1605. 1
called over to New York. I got hold of the usher, Mr.
Sherer, and I asked him, "Where is Mr. Harris?" And he
said, "Right here."
I started to talk to Harris and asked him why
weren't these trains split by A Tower? "I was at PD-4
stapling manipulation sheets and yard layup sheets together
on orders from my superiors"and I said to him,"If this
is the case, don't you think your job as the supervisor
of a brand new operator at C-Tower, a fairly new yardmaster
down on 21 track, don't you feel at this time that you
should be in the stationmaster's office calling the shots
they way they are supposed to be?"
He said, "I was told by my superiors that I
had to get these things stapled."
And I said, "Your job is not to staple sheets
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[317]
rk:mg 81 Satter-direct
A - 3 8 0
together, we can give that to an usher, why aren't you
in the stationmaster's office where you belong?”
"I was told” —
"But it doesn't really matter what you were
told. Why weren't you there to oversee the operation?"
During the course of this conversation, while
I am questioning him as to why we didn't split these par
ticular trains, I get this, "Don't you bring in no racial
overtones at me."
I said, "There are none intended. There were
none inferred. All X am asking you is why the job wasn't j
done the way it was supposed to be done and why weren*t
you there sitting overseeing the operation?"
Earlier that evening, the train dispatcher
had told him about train 189. Told him he would be oper- j
ating with ten cars, to pull west. Make sure he cleared
the interlocking at C.
i
The train didn't clear the interlocking at C.
4u
The announcement was never made.
According to the crew when they got back, the
crew said, "We never got any announcements, we never got
any radio broadcast to pull west on 16 to clear the C
interlocking."
And then the other incident, as I just stated,
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[327]
rk:mg 91 Satter-direct A 3 8 1
Mr. Harris.
If we had Mr. Gaynor on first, we would know
whether this evidence was properly admitted or not. That
i
is what Mr. Gaynor testified to and there is going to be
no connection on this and we don't know about other ones,
i
but we will find out if he talked to Mr. Gaynor first.
MR. STOKES: Mr. Gaynor's decision to take
Mr. Harris out of service had to be confirmed by Mr. Dixon.
!
Mr. Dixon was very familiar with this incident of Mr.
Satter's.
If we had wanted to retain Mr. Holwell to
present our case, I am sure the company would have done it.
THE COURT: I know, but he does make a valid
objection if what we are getting into, what Mr. Gaynor's |
j
reasons were, express reasons for discharging Mr. Harris
!were certain things and we are now getting into things that
Mr. Gaynor never knew about; I think we are off base.
i
MR. STOKES: Not in this way, your Honor.
Mr. Gaynor reports his decision to Mr. Dixon who can overrulet
In this case Mr. Dixon, being familiar with many of
these things, he approved it and affirmed that decision,
and Mr. Dixon will be a witness here.
I have already indicated to counsel I intend
to call Mr. Dixon.
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When we get up to Hr. Dixon, that is a little
different.
MR. STOKES: Of course the Long Island Railroad
Company is a corporation and something like this is a manage
ment decision, and while Mr. Gaynor may make the Initial de
cision, ultimately the decision has to be affirmed by higher
authority which is Mr. Dixon and Mr. Dixon has knowledge
i
of Mr. Setter's report, and this Is one of the things he
takes into consideration.
i
MR. HOLWELL: Your Honor, I don't want to con
tinue this any longer than necessary ——
THE COURT: It is all right if we rehash it out j
to see where we are going, to take a little time.
MR. HOLWELL: Mr. Gaynor has testified at least
m the initial instances it was his decision to fire Mr. \
Harris. He did testify that he never saw this report, had
no knowledge of the incident. I would suggest that is
going to be true to varying degrees with whoever else the
railroad wants to bring in, and I would suggest the proper j
way for the railroad to get this evidence in, the most !
efficient way for the Court to hear that evidence, is to i
Put their senior employee on the stand, the fellow who j
ired him, and find out what his reasons were. \
THE COURT: Is it Mr. Gaynor or Mr. Dixon that
r k :mg 95 S a t t e r - d i r e c t 4 - ^ 8 2
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[341] A- 383
rk:mg 105 Satter-cross/redirect
Civi ti1 lo-direct
A Yes.
Q And of course it goes without saying that he
has to be out of the office when he is doing some of these
things?
A Yes.
HR. SOLLIS: Nothing further.
REDIRECT EXAMINATION
BY MR. STOKES:
Q In essence, Mr. Satter, your unhappiness the
night of the 16th, that was because Mr. Harris failed to
notify you promptly and failed to show initiative?
A Yes, you could say that.
MR. STOKES: Nothing further.
THE COURT: You may step down.
(Witness excused)
MR. STOKES: Mr. Civitillo.
V I N C E N T C I V I T I L L O , JR.,called as a
witness by the defendant, being first duly sworn.
testified as follows:
DIRECT EXAMINATION
BY MR. RUBIN:
0
A
0
By wh6m are you employed, Mr. Civitillo?
V
Amtrak. -
In what capacity?
i
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[342]
rk:mg 106 C i v i t i l l o - d i r e c t /!• 3
A Block operator.
Q On the night of November 9-10, where were you
stationed?
A At C-Towcr.
Q On that night, did you learn there was going to
be a closing of line 3?
A Yes.
Q When was the first time you learned?
A At a little after 11 o 'clock. j
Q Who told you?
A Mr. John Segreto, A-Tower train director.
Q Did he know at that time what time the line would j•* »
go out?
A No. |
Q When did you learn that line 3 would go out?
I
A Around midnight and not after 12:21,400's leaving j
time. ,
Q What did Mr. Segreto tell you — who did you
learn it from-- from whom did you learn that line 3 would
go out?
A Mr. John Segreto, A-Tower train director.
Q What did he say to you?
A "Hold on line 3 after 400 goes off 19 track."
Q Did you repeat that to him?
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rk:mg 107 Civitillo-direct A' 385
A Yes, sir.
Q How did he communicate that to you?
A Over a speaker system that can be called a
central loudspeaker system. j{
Q Are there other towers attached to this speaker
system?
A Yes. I
Q Did they all acknowledge?
A The towers involved at A-Twoer was questioning,
did acknowledge, yes.
0 Do y°u know if this speaker system is also con
nected to the stationmaster1s office?
A Yes, sir.
Q Subsequent to that time, did you hear or make
any announcements with reference to the movement of
train 489?
A Again, please?
After that time what is the general procedure
when a train comes into Penn Station?
I
A I will get a report from Harold Tower signifying j
the train number and the time by Harold. Immediately
r receiving the report, I will get on with the yard—
ter and ask for a track and the yardmaster will specify
e track he desires for the train to enter upon.
[ 3 4 3 ]
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[344]
rk:mg 108 Civitil-lo-direct ( 3 8 6
Q And you speak to the yardmaster how? How do
you speak to the yardmaster?
A I will put on the block line system phone and
inform him I have such and such a train.
"Hello, Eddie, train 489."
And he will reply with the track he so desires.
Q Is this a three-way squawk box?
A Yes.
Q Who is the third person on this?
A The people involved is the assistant station-
master, yardmaster, C-Tower operator.
Q When 489 passed Harold Tower, did he call you? I
i
Did Harold Tower notify you?
A Harold Tower made the report.
Q What did you do then?
A I immediately called the yardmaster on the
three-way speaker system, notified him that 489 was reported
by Harold. He replied 17 track.
Q Do you remember Mr. Lehr stating anything else
at that time?
A Yes.
Q What did he say?
A After receiving 17 track from Mr. Lehr, I heard
bim instruct Mr. Edward Harris, the assistant stationmaster,
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[345]
rk:mg 109 A - 3 8 7Civiti1lo-direct
to instruct the motorman of 489 to pull west on 17 track
to clear the east end.
Q
do you?
A
Q
A
You don't know whether Mr. Harris heard that,
No, I don't.
You did hear it, though?
Yes.
Q You were in your office at the time?
A Yes, sir.
Q Did you have any other communications with
Mr. Lehr with respect to line 3 closing at about that time?
A Yes, sir. Prior to 400 leaving, Mr. Rubin, I
informed Eddie Lehr on the three-way speaker system that
as soon as 400 goes off of 19 track, I will have MFW equip
ment coming up from the west end of the station, coming up
on 19 track, eventually to go out into line 3 once 400
cleared because the tunnel and the track would be going out
of service.
Q This is on the three-way squawk box?
A Yes.
Q Have you had prior experience with line 3 being
taken out of service?
A Yes, Mr. Rubin.
Q Is line 3 generally taken out before or after
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[350]
rk:mg 114 Civitillo-direct
f - 3 8 8
was coming up on 19. I asked Harold interlocking to please
notify me when 400 was going to clear his interlocking so
I can notify that to A-Tower.
During that process A-Tower had also been
instructing us of the plate card that was eventually going
to go into effect for line 3.
Track crews and gang foremen were coming into
the tower to prepare themselves for the necessary informa
tion before going out into line 3.
Q So you were busy with your paper work?
A Yes, sir.
Q When you first noticed that 32 was fouling to go
line 1, what did you do?
A I got on to the three-way speaker system and
really just aimed at no one. I just yelled that 82 is
not in the clear, get him west.
Q Did you speak to anyone else at that time?
Yes.-I had called up Mr. John Segreto at A-Tower
trying to see if I could get 82 line 3 instead of line 1,
just to see if I could get it out there, but Mr. Segreto
informed me that *we have a strict hold on line 3 and he
ls sorY/ no way.
At that time you knew the power was out?
Y(̂ s, sir, the plate card was in effect.
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You were trying to see if there was anything you
If it could be annulled or in any other fashion.
What time is train 1691 due in?
At 12:43.
Did 1691 platform at 12:43?
No, sir.
Why not?
At 12:43, 82 was in the process of being pulled
west. 1691 was scheduled for 16 track. At that point I
didn't know what time 82 was going to actually depart, so
when he did eventually clear, I routed the 82 train towards
JO and had to wait for it to clear to crossover so I
could safely bring 1691 in for 16 track.
Q Did Mr. Harris specifically tell you at that
time to bring 1691 in?
A . No, sir.
Q If he had told you, would you have?
A Yes.
Q Has he ever asked you to bring trains in in
emergency types of situations?
A 389
Civitillo-direct
[351]
rk:mg 115
Q
could do?
A
0
A
Q
A
Q
v
A
’A No.
Q Have other stationmasters from time to time
ever directed you to bring trains in?
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[352]
rkmg 116
A - 33 0
Civitillo-direct
A At certain times, ye s , if it was as an emergency
if they felt as though there was a need for a train to get
into another track; yes, I would comply with that.
Q Was there another train about to enter your
interlocking at about that time? In other words, was the
track gang ready to go out by that time?
A At the time when 82 train was preparing itself
to go out, the track car equipment on 19 track reported
"ready" and 82 still had not gone out of the station, so
I routed my machine from 19 track to main line 3 and pro
ceeded to MFW equipment to go out into the tunnel to do
their job.
Q If 82 had left on time, could you have brought
1691 in?
A Yes.
0 On time?
Yes, on time or maybe one minute late.
Q Since it was staying out there, you decided to
take your track equipment out?
Right, since 82 was not going east and he had
the railroad to go out, towards JO, why should I hold three
ings, three sets of equipment?
Do you remember when the track gang did go out?
A Yes.
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[353]
rk:mg 117
A 3 9 1
Q What time?
A The first set of equipment was one piece of track
car with one additional piece. That reported in the clear
at line 3 at 12:48.
Now, once the switches are aligned from 19 track j
to main line 3, with permission between me and the foreman
on the track car equipment, once we have a mutual agree
ment, no way I will take railroad away from it. The
second piece of track car equipment with two additional
pieces on track 19 also went out behind it and he reported j
in the clear at 12:51 and after that, I proceeded to bring
in train 1691 for 16.'
Civitillo-direct
Q So if it had not been for the track car equip
ment going out, 1691 might have come in a couple of minutes
earlier?
Yes.
0 But if 82 left on time, you could have brought
him in on time?
On time.
Q Assuming 82 went out at 12:43 or 44 and you have
the track gang equipment sitting on track 19, would you
still hold 1691 and 195 out or would you bring it in?
A Assuming 82 went out at :43 or :44, I would lave
brought in the train.
southern m .rict court reporters. u .s courthouse
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[354]
r k : m g 118 C i v i t i l l o - d i r e c t
A - 3 9 2
Q And 195?
A Wait for the clear block on 4 so nothing can
interfere, then get the track car equipment out.
Q Have you been on duty in the past when you have !
had emergency situations or problems with Mr. Harris?
A Yes.
Q Do you generally help each other out?
A We would like to work together. It is best to
i
work together because your eight hours goes smooth and quick.
Q And you do work together with Mr. Harris?
A Yes, sir.
Q Have there been situations in the past when you
have alerted him to problems he might not have noticed?
A Yes, I can remember one instance.
Q What was it?
A It was one night during the summer months. I
couldn’t tell you exactly when. We had a train out at 3:07,
I
train 1604 off 18. Prior to its departing time I just
looked at the train and seen no one in the cab. Not even
the cab door was open. I just got on the three-way speaker
system and said, "Listen, Eddie, I don’t know if you know
about it or not, but I don't see anybody in the cab." And
sure as everything, there was nobody assigned to that train
for a motorman, so he went about his job to assign someone
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[359]
rkrm 3 Civitillo-cross 393
Only if the rear end of the car is exactly at
the end of the platform, I can see the train.
Q And the minute it moves off the rear end of the
platform, you can't see the train?
A If it goes westward a half car length more,
I couldn't be able to visualize that.
Q You could tell whether or not the train was
sitting on the east end of the platform?
A - If it was flushed against the rear of the
platform.
Q If you saw that, you would know that the train
wasn't pulled far enough west to go up Line 1?
A Definitely, yes. May I also bring up another
point?*
Q I think we will let Mr. Rubin do that.
Other than checking visually, what other method
do you have?
A My machine in my tower.
Q How do you check whether or not there is aI
fouling by looking at your machine?
Restoration of signals and switches.
Is there also a signal board?
There is a model board.
You can look at a model board or you could qo
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rkrm 4
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over and look at the machine?
A I can look at the machine.
Q Or the model board?
A The model board will not indicate to me that the
train is over my crossover switches. On the model board
it tells me that there is a train on that particular track,
if there is a train.
Q But the machine will tell you?
A
i
The machine, yes.
Q On Track 17 for a train to depart Line 1, it
has to be west of Signal 8-R; is that correct?
A That is correct. Also may I add that if there
is a train on 16 track, that has to be clear of 10-R.
Q I think that is right.
A It is right.
Q When a train comes in on 17, the moment it comes
m on 17, you could tell by looking at your machine if you
looked at it, whether or not it was clearing that signal?
A I can immediately see if the train is within
the limits of clearance.
Q And there is nothing mechanical you have to do?
A Yes. I have to restore my signals to center.
Q And look at the machine?
A And look at my switches. If the switches light
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up, evidently the ^rain is in the clear of the switches in
question.
Q Will a yardmaster generally call you to ask
whether o.r not a train on Track 17 or 16 is in the clear?
A
Q
■ A
Q
A
varies.
He can if he wants.
Does he usually do that?
It varies to whom I work with.
How about Mr, Lehr, does he usually do it?
Sometimes he does, sometimes he does not. It
0 He usually does not?
MR. STOKES: The witness answered the question.
THE COURT: Yes.
Q Sometimes if a yardmaster does not ask you,
you yourself will get on and tell him the train is not in
the clear? **
A If I had seen that the train wasn't in the
clear as soon as I see the train isn't in the clear, I will
notify the people involved so the train can be pulled west
if they want: fit west.'>*
A . .., t 1
0 That is because it is part of your job as it is
Part of everybody's job in the railroad to make sure there
are no delays?
A Let me get something straight. It is not my
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responsibility what these trains — let me put it this way. I
j
Tt is n°t my responsibility once a train enters !
a platform track. My responsibility, Mr. Holwell, is trains
within my interlock. Once the rear end of the train passes
my tower and goes into the platform, they can do whatever -
they want with that train.
Q And you couldn't care less?
A I am concerned, yes, for the safety of my signals
and switches; it does not interfere with the circuitry. i
They could do whatever they want with the train, two cars
J
off or make the train go down in the yard. it isn’t my j
business. !(
Q -If the yardmaster calls you up and asks you
i
whether or not it is fouling, you will tell him?
A Yes, sir, I try to be as cooperative as'possible.
Q You are familiar, as I understand it, with
Train 1691?
A Yes.
Q And that was that night's schedule for Track 18;
is that correct?
A Are you saying that Mr. Lehr said I was to put
that train in on 18 track?
Q Is it normally scheduled for Track 18?
A I am not familiar with the whereabouts of the
Civitillo-cross
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Q You wouldn't make any assumptions as to when
a line is going to close, will you?
A I have no authority to put out a line, period.
Q My question is, yon wouldn't make any assump
tions as to the time when a line is going to go out?
A I just do what I am told.
Q You will check and find out when it is going
to close?
A Unless it is told to me, my question isI
answered, yes.
0 On the evening of November 9 and 10, 1691 was
held out of the station.
A Right.
Q That was your decision to hold it out, right?
A In a way. It was my decision.
Q Did you make the decision to hold the train out?
A Yes, due to —
Q I will ask you why in a second.
A Yes.
0 The reason you held that out —
A You want the reason?
Q I will ask you if this is the reason: The
reason you held it out because you had maintenance of way
equipment on 19?
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due in at 12:43,
[371]
rkrm 15 Civitillo-cross
a 398
Q You held 1691 out because on the schedule 02
is supposed to leave first?
A No, hut it does have priority over 1961 because
it is a conflicting move, Mr. Holwell. You can’t go 17 out
and 16 inbound. It is virtually impossible.
•Q What?
A To bring 17 out and 16 in, like I stated before
in testimony.
Q Is it possible to hold 17 in and bring 16 in?
A Of course.
Q And you didn't do that because you assumed that
82 was going to go out right away?
A As soon as it got into the clear, Mr. Holwell,
I was under the impression it was going to go out as soon
as it cleared.
Q Did you check with the yardmaster on that?
A If it was ready?
Q As to whether or not to hold 1691 out or to
bring it in?
A I didn't check with anybody.
Q Did you check with the station master?
A No, sir.
Q Let me read to you some of your testimony on
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rkrm 16 Civitillo-cross
A 333
page 108.
A I don't have my paper here.
Q I will read it to you. Line 14:
"Q So even if the Train 1601 was coming into Track
16, because of the work crews on Track 19, you have delayed
it from going into 16 regardless of whether or not 82 —
"A Yes. It may not have been so steep as it was
but it would have been delayed three or four minutes more
than the arriving time on there."
Do you remember me asking that question and you
giving that answer?
A Yes, but I wasn’t informed, Mr. Holwell, of
l
1I
my MFW equipment clearing times going into Main Line 3,
because remember, I have two pieces of track car equipment.
Q What you are saying is, in your deposition you
were mistaken?
A At that time of deposition, Mr. Holwell, I was
trying to give you the facts as they were.
0 Were you mistaken as to the facts?
A Now, am I saying that was a mistake?
Q Yes.
A I am saying that was the best of my knowledge
at the time of deposition.
And it was wrong?
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A I am not saying it was wrong. I am saying at
the time I thought it was right but now I know different
because of my block sheets telling me.
0 So it was wrong?
A See --
bR. RUBIN: Your Honor, the witness has answered.
THE COURT: Yes.
Q Now, you say you decided to let the work train
go out at what time?
i
A The report had the first piece of track car
*
equipment reported in the clear on Main Line 3 at 12:48. iIIG I am not sure exactly why you decided to let it i
go at that time.
A Because 82 had not cleared the crossover switches
I
from 17 Track to go to JO.
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Q How did you know that at 12:48?
I
A • Because I am looking at the machine. I am
working behind my machine.
Q I know, but I thought you had just said that the
reason you held 1691 out was because they were just pulling
82 west and you knew it had just cleared and they were going
to go right east out of the tunnel. Now you are saying at
12:48 you didn't know whether it had cleared.
A A signal is displayed. An 8-R signal is
[373]
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rkrm 18 Civitillo-cross
101
»
displayed off of 17 Track with 7 switch and 5 switch reverse]
Now, in order for me to tell if the train is by that signal
and within that route, the "R" will disappear on the
machine. booking fit that machine, the "R", if it was
displayed, the train isn't moving. If it isn't displayed,^
the train is in motion or took the signal and stopped.
Either one of those three. i
II
Q So at 12:48, did it have the signal to go out
Line 1? ■
iA Yes. ii* 1
Q At 12:48 Train 82 had the signal to depart?
A Yes. j♦* |Q Even if it had the signal to depart, you sent i
the work train out?
A Yes.
Q Let me move back a little earlier in the evening
on November 9, November 10. You came on the job what time
that evening?
A Excuse me.
Q What time did you get on the job that evening?
A 11 o'clock I started.
Q And you became aware the line was going to close
sometime that night at 11 o'clock?
A Yes, generally.
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Q
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Civitillo-cross
And Mr. Segreto told you that?
That is correct.
Thereafter Mr. Segreto told you, you say, that
sometime between 12 and 12:21, that there would be a hold
on Line 3 after 400?
A That is correct.
Q So that you claim now that you knew before the
departure of Train 12, the train at 12:4 — you are saying
the line was going to close?
A You are saying now that I am telling you that
I know now I had the hold for 400?
Q Yes.
A I knew from midnight to 12:41 400 would go out.
I knew then.
Q And you knew all that night?
A I knew once A-Tower train director made the
announcement to all involved that Line 3 was going out after
400 and I acknowledged and understood completely.
A 402
Do you remember having a telephone conversation
a little later that evening with Mr. Tietjen in 204 office?
A Yes.
Q During that conversation he asked you whether or
not you knew whether Line 3 was going to go out?
A Yes.
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[376]
r k r m 20 Civitillo-cross
A *103
i
Q And didn't you tell him at that point it was
news to you?
A I said that but I wa3 under the impression that
Mr. Tietjen, Chief Dispatcher, was telling me that A-Tower
told me at 12:21 that there was going to be a hold on -
Line 3. I knew prior to 12:21 that there was going to be
a hold on Line 3 after 400. That is how come I said it is
news to me that A-Tower is telling me now at 12:21 there
is a hold. I knew way ahead of time.
Q Let me read your conversation there and let me
* i
see if we can agree on what it says.
A Yes. J
Q (Reading:)
"Q A-Tower told you they were taking Line 3 out i
iaround 12:21?
II
"A A-Tower told me they were going to take out the !
train about 12:21. |
I
"MR. TIETJEN: Line 3.
"MR. CIVITILLO: That is news to me."
A That is just what I said now. I was under the !
impression that Mr. Tietjen was telling me at 12:21, A-Tower
was saying I had a hold on Line 3 after 400. It wasn ti sit
12.21 that Mr. Segrego made that announcement.
Q You misunderstood Mr. Tietjen.
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A I was implying the question as to me hearing
it over the phone that 12:21 I heard A-Tower tell me that
Line 3 was going out of service.
0 And what you really meant to say is that you
heard before 12:21?
A Yes, but I said that is news because that is
what I thought he was implying.
You say you heard from A-Tower on the central
loud speaker system?
A Of what?
With regard to the closing of Line 3?
Yes, that is correct.
And you responded to him?
Yes. I always will acknowledge A-Tower on any
instructions given to me.
Q And this happened before 12:21?
His announcement?
Yes.
Yes, sir.
By the way, Mr. Civiti]lo, have you had a chance
eview the transcripts of your telephone conversation
with Mr. Tietjen prior to today?
^ Yes, I read that once before, sir.
As far as the A-Tower communication, you say
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[377] \ iOi
rkrm 21 Civitillo-cross
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that C-Tower and Harold Tower acknowledged as well as --
rather you and Harold Tower acknowledged that communication?*
A Of A-Tower saying that Line 3 was going out
after 400, yes, I believe so because A-Tower wouldn't let
that slip by. It was very important.
Q That is because if he wants to make a communi
cation and make sure somebody hears it, he will get a
response from you that you heard it?
t
A Of course.
• i
Q You next testified at around 12:18 you heard 5
Mr. Lehr on the squawk box tell Mr. Harris to have Train
, i
489 pulled west? ■ i
A Yes. As soon as I reported 489 to Eddie Lehr,
he replied 17 and then after that I heard the instructions
to Mr. Harris to have the motorman pull 489 west.
rkrm 22 C i v i t i l l o - c r o s s ^405
Q And you did not hear Mr. Harris reply?
A No, I am sorry I didn't.
Q It is standard operating procedure on the rail
road, though, to reply to communications when they are made
to you?
A It is nice to have people acknowledge you.
Q It is also good for safety reasons?
A Depending how much of safety you are talking
about, right?
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A 406
i
Q Right.
Did you tell Mr. Tietjen when you spoke to him
later that night that vou didn’t hear any response from Mr.
Harris?
A I made that clearly as possible to Mr. Tietjen-
that I didn’t hear Mr. Harris reply to that instruction
and I assumed he was under the impression that he received
my message in that conversation.
Q You told him?
A Yes. Mr. Tietjen called me up and asked me.
Q And you told him that you did not hear Mr.
Harris respond?
A Yes.
23 • Civiti1lo-cross
Q You that that was important in order to give a
fair picture of what happened?
A No, he asked me.
Q Did you think it was an important piece of
information?
A I didn’t think of it at the time.
Q But he asked and you told him?
A I answered his question.
Q At the time that Mr. Tietjen called you, you
were under the impression that somebody was going to stick
you for the train delay?
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[380]
rkrm 24 Civitillo-cross
A - 4 0 7
A That is correct, Mr. Ilolwell.
Q You were a little —
A Not at the time Mr. Tietjen called me. This
happened from the conversation dealing with the dispatcher,
not the chief dispatcher. When Mr. Tietjen called me, my 1 _
blood was at boiling point already because of the prior
conversation with the dispatcher.
Q Even though your blood was at a boiling point,
i
| you told him you didn't hear Harris respond? j
A Was my blood at a boiling point —
*
Q Even if your blood was at a boiling point, you
told him you didn't hear Harris respond?
I
A He asked me a question. I answered it. It is
an easy yes or no answer.
THE COURT: The temperature of your blood did
not have anything to do with your giving an answer, did it?
THE WITNESS: No, sir.
1
Q Now, 489 arrived on Track 17 at 12:24; is that
correct?
A That is correct.
Q Did Mr. Lehr at any time ask you during the
course of the night to let him know if any trains were
fouling on 16 or 17?
A No, sir. If he did make a statement, I didn't
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hear it.
[381]
rkrm 2S Civitillo-cross
<\ 108
Q Your best recollection is he didn't make any
statement?
A To my best recollection, I didn't hear any
statement* no,
Q Other than asking yon generally to let you know
if there had been any foulings — to let him know if there
had been any fouling on 16 or 17, did he specifically ask
you to check to see whether 489 was fouling? ^
A No.
j
Q I assume if he did, you would have checked it
for him?
A That is correct.
i
Q When 489 arrived, if you had looked out your
window, could you have seen the Train 489 sitting on its
position on Track 17?
A Yes.
Q If you had looked at the machine inside your
office, could you have told whether or not 489 was fouling
on 17?
A That is correct, sir, but dealing with my paper
work, Mr. Holwell, with the "M" forms and the 19 order
forms plus the track gang being in my tower, I am not goinq
to turn my whole body around to look at 17 because I was
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under the impression the train was being pulled west. That
is what Eddie Lehr instructed Mr. Harris to do. I am in
operations of the Long Island Railroad. I have to move
their trains, divert them. Eddie Lehr determines the track
and Mr. Harris deals with crews and other things. If he is
asked to do something, you do it.
Q Even if you didn't hear Mr. Harris' response,
you knew the train was going to pull west?
A Directly after hearing Track 17 from Eddie Lehr,
I went to the machine to make the 4 to 17 route for
Train 489. I
[382] A - 4 09
rkrm 26 Civitillo-cross
Q If you had not had all that paperwork that night j
and if you had not heard Mr. Harris —
A If I hadn’t? !
0 If you had not — let me rephrase the question.
A Please.
Q If you had not heard Mr. Lehr ask Mr. Harris
on the squawk box to pull the train west, even with your
paperwork, you would have either visually checked or checked
your machine to tell whether or not it was fouling?
A At that time, Mr. Holwell — that is an iffy
question. I can't speculate because I don't know what I
would be doing.
II
As I said before, when the train comes in, it
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comes in. I do not have to deal with that particular train
until 12:41. Within that 20-minute gap I was dealing with
this particular paperwork and the mutual agreements with
the trackmen in question on 19 Track. I can't tell you
if I would have looked or not. At that November 10, I did'
not look. That is all that should be of concern. I didn't i
look.
Q Let me read to you some of your deposition
testimony. On page 84, line 15:
"0 That night you did not do it because you had
paperwork and also because you heard the yardmaster tell
I
Harris to pull west?
t* i
"A Right. !
!
"Q If you had not heard the yardmaster tell Harris
to pull west, would you have done it?
"A Yes. I
"Q Normally if you would not have heard that, you j
i
would have gone and checked that out?
"A Yes."
Do you remember me asking you those questions
and you gave those answers?
A You asked the questions and I gave the answers.
Q And those answers were the truth when you gave
them?
[383] A - 4 1 0
rkrm 27 Civitillo-cross
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[384]
rk rm 28 C i v i t i l l o - c r o s s
A 4 1 1
A Yes.
Q Are they any different today?
A No.
THE COURT: Why don't we break for todav.
MR. STOKES: Your Honor, I had two other short'
witnesses I was wondering whether your Honor would let us
put on.
THE COURT: How short? j
MR. STOKES: Not more than about four or five
i
minutes each, your Honor.
THE COURT: Who are they? Maybe they will
stipulate on their testimony. j
i
MR. STOKES: They are the engineer and conductor |
of Train 1691. They are supposed.to be working tonight. j
We took them off tohight and have to pay them and if I have j
to bring them in tomorrow — I
'•* |THE COURT: Is there going to be any dispute
about their testimony?
MR. HOLWELL: We can't tell until we hear it.
THE COURT: Why don't you step off and put the
engineer on right away.
(Witness temporarily excused.)
i
i MR. STOKES: Mr. Quinn.
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[385]
rkrm 29 Quinn-direct M 1 2
P A T R I C K J . Q U I N N , J R . , called as
a witness on behalf of the defendant, being first
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. STOKES:
Q. Mr. Quinn, by whom are you employed and in what
capacity?
A The Long Island Railroad, engineer.
Q On the night of November 5, November 10,
November 9, were you the engineer of Train 1691?
A That is correct.
Q Do you recall being held at the home signal?
A Yes, I do.
Q What time approximately did you arrive there?
A 12:43.
Q What time did you actually pull into the plat
form?
A Approximately 12:53.
Q At any time while you were being held on the
home signal or up until when you were platform, did you
receive any communication by radio or public address system
from the assistant station master?
A Partially.
Q What was that communication?
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[386]
rkrm 30 Q u i n n - d i r e c t
K- 413
A The first time I had tried to receive the
station master, I heard the train No. 1691 and the message
came in garbled. Then I proceeded to try and get the
station master again and could not get ahold of him.
Q So other than hearing the train No. 1691, did
you have any conversation with him?
A None at all.
Q As you pulled into the station platform, was
there any announcement on the public address system?
A None at all.
Q Were you listening for it?
A Yes.
Q Was your radio working?
A Yes.
Q How do you know it was working?
A We had intertrain communication.
Q Mr. Quinn, Mr. Harris has testified here, "Then
I proceeded to try to get 82 west so we could get it out
as soon as possible.
"Q Thereafter did the engineer of 1691 contact you?
"A Yes, he did at about 12:48.
"Q What did he say?
"A He asked me as station master how long we are
going to sit out here and I responded to him that we would
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rkrm 31 Quinn-direct f\~ 414 !
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try to get you m as soon as possible and at that particular
moment, he indicated that he thought he had gotten the
signal but I noticed later on that he had not. At that
particular time since it was my custom the moment I contact
a train coming out of the tunnel I know he will be on the
track thirty seconds and I write the time down 12:48, but
he didn't actually arrive at Track 16 at that time."
Do you have any recollection having such a
conversation with Mr. Harris?
A Not at all.
Q At page 109 of the transcript of this, again:
Q As I understand you were in communication with
the engineer and conductor of Train 1691?
"A Yes, at about 12:48.
"Q they first communicate with you or did you
communicate with them?
,!A They communicated with me.
Q To ask why they were being held?
"A Right.
Q And your reply was, we. will get them in as soon
as possible. What was the next communication you had with
them?
'A Right following that I asked him when he came in
°n Track 16 to pull west and clear the signal to go east
[387]
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rkrm 3 2 Q u i n n - d i r e c t ~ c r o s s ^ 415
out of Line 1.
"Q Did he acknowledge the receipt of the order
in any way?
'A It was the same conversation. He said okay."
Did you have any such conversation with Mr.
Harris?
A No.
MR. STOKES: No further questions.
CROSS EXAMINATION
BY MR. HOLWELL:
Q You are the engineer on Train 1691?
A Right.
Q You have radio contact or you at least have a
radio that the assistant station master has and the yard-
roaster has?
[388]
»
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A I have radio communication with them.
Q Are you the only one on the train with radio
communication or can the conductor —
A The conductor and also the two brakemen.
Q You could all be in contact with the station
roaster?
A Correct.
Q Do you know whether or not when you heard someone
ying to get in touch with you whether it was the station
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[389] _ A- 416
rkrm 33 Quinn-cross
master or not?
A Yes, I recognized Mr. Harris' voice.
Q Do you know whether or not you said anything
back to him over the radio?
A I said, can you please repeat that, and there ~
was no answer. Then I said 1691 to the station master,
over, and no answer, and I repeated it several times.
Q That was the sum and substance of your conver
sation with him on the radio?
A That is about it.
Q You don't know whether or not he was saying
anything to you on the radio, I guess?
A There was nothing coming over the radio.
Q Because it wasn't working?
A Well, after I talked or tried to talk with the
station master, I talked to my conductor through the train
system which is Channel 3, and we talked to each other
perfectly, no problem, very clear and distinct.
Q When you were talking t o Mr. Harris or Mr.
Harris tried to contact you, it was garbled?
A The 1691 came in fairly clear but the rest of
the message, I could not understand.
Could that be because when you are speaking to
Your conductor inside the train, it is a little different
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rkrm 34 Quinn-cross A ' 417
or more difficult, maybe, to get radio contact with
somebody further away from you?
A I don't really know that much about radio
communication so I couldn't tell you.
Q That might be a reason, though?
MR. STOKES: Objection.
THE COURT: Sustained.
MR. HOLWELL: That is all.
THE COURT: You may step down.
(Witness excused.)
MR. STOKES: Your Honor, perhaps we ought to
suspend at this time.
THE COURT: Tomorrow morning at 10:00 a.m.,
gentlemen.
(Adjourned to Wednesday, December 15, 1976
at 10:00 a.m.)
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[397]
rk:mg 6 Civitillo-cross
that. On the block sheet is the correct thing that hap
pened. At the deposition is just what I am trying to
recollect.
Rememberf I work five different towers each
week. Trying to pinpoint what happened when I worked C-
Tower that night on leaving times and arriving times, it
is kind of hard.
A' 41 8
I work QFRCN. It ishard to pinpoint for each
tower.
Q But that is the assumption you were working on?
A OK.
Q You also said with regard to that conversation
with Mr. Tietjen that when he said to you, and A-Tower
told you they were taking line 3 out around 12:21, and you
responded, "That is news," it was your interpretation of
^that statement or your interpretation of Mr. Tietjen, you
thought Mr. Tietjen was referring to the fact that A-Tower
had contacted you at 12:21 to tell you the tunnel was going
out at 12:21? -
A That is what I was getting at,from his conver
sation.
That is what you were getting at yesterday?
A No. At the time of the conversation, that is
what I WQS getting at.
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[400] rk:mg 9 Civitillo-cross
A - 4 1 9
A The plate card?
Q Yes.
A The plate card was recited around 12:21 to the
time it was put into effect, hut I knew damn well before
12:21 that line 3 was going out after that train departed
off of 19 track.
Q And you didn't tell Mr. Tietjen that because he
was with a foreign railroad?
A Plus after his conversation, minutes prior to
that, I had a discussion with the dispatcher and he was
coming down strong saying it was my responsibility to pull
trains west in Penn Station which is hogwash.
Q OK. Thank you.
How often do you work C-Tower?
A Every Tuesday night of the week.
Q You work it one day a week?
A That is correct.
Q Did there come a time when you wrote a report
to Mr. Gaynor?
A Yes, I wrote a report to Mr. Gaynor.
Q When were you asked to write that report?
A I think November IB, Thursday night, while I was
at F-Tower.
Q You wrote it while you were on the job?
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[413] rk:mg 22 . . . A- L20Clvitillo-redirect
Tietjen: What I want to know, Mr. Civitillo,
is why you didn't pull 82 west.
Civitillo: Mr. Tietjen, for one, I could not
pull the train west,it is not my job to pull the train
west. My job is to get this train into the station. Now
1 got it in here close to on time. It was by Harold at
12:18 and I got it in here at 12:24. The way the train
platforms is none of my business. It didn't stick off the
platform. It was in the clear of my interlocking. The
only thing that wasn t in the clear were my two crossover
switches. It is too close to them over towards JO. That
is all I can tell you."
bility?
You told Mr. Tietjen it is not your responsi—
A That is correct.
Q And it is not your responsibility, is it?
A That is correct.
Q Vinnie, you did write a report addressed to
hr. Gaynor on the night of the 18th?
A Yes.
Q And you handed it to me on the afternoon of the
19 th?
A That is correct.
And you have had a previous conversation with
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[414] rk:mg 23 . . A " 4 2 1 Civitillo-redirect
Mr. Gaynor?
A On the telephone.
Q Could that have been on the 10th instead of the
11th?
A When was Wednesday?
Q It was the 10th.
A Then I am sorry, it was the 10th. Since working
nights I never have my dates and times put together.
Q Is this the report you handed to me on the
afternoon of the 19th?
A Yes, sir.
fication.
MR. RUBIN: Would you mark it for identi-
tion)
(Defendant's Exhibit H marked for identifica-
Q Would you read the first three sentences of this
report? -
MR. HOLWELL: We object to its use.
THE COURT: Read it to yourself. Not out loud.
It is not in evidence.
A All right.
Q On the night of the 9th-10th, you told Mr.
jen you heard Eddie Lehr tell Mr. Harris to make sure
480 pulls west?
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atives.
[422]
r k : m g 31 Civitillo-recross Hodges-directMy block sheets I reviewed through my represent-
A- 4 2 2
Q And that is what helped you to remember you
spoke to Mr. Gaynor?
A I looked at the block sheet and that is what
helped me to remember the specific incident you are bringing
to me.
MR. I10LWELL: Nothing further.
THE COURT: You may step down.
(Witness excused)
MR. RUBIN: Mr. Hodges.
J A M E S T H O M A S H O D G E S , called as
i
a witness by the defendant, being first duly sworn,
testified as follows:
direct e x a m i n a t i o n
BY M$. RUBIN:
Q By whom are you employed, Mr. Hodges?
Long Island Railroad.
In what capacity?
Conductor.
On the night of November 10, were you conductor
°n train 1691?
A Yes.
When did you arrive at the home signal that
A
Q
A
Q
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[423]
rh.-mg 32 Hodges-direct r - m
night?
A Approximately 12:42, 12:41.
Q You sat at the home signal for approximately
ten minutes?
A Approximately.
Q When is your scheduled arrival time?
A 12:43 in New York.
Q Do you know when you got into New York?
A Approximately -ten to twelve minutes late.
0 Let me read to you— at any time while you were
waiting at the home signal, did you have a conversation
with Mr. Harris?
t
A No.
Q Let me read to you from Mr. Harris' testimony
at page 54—
MR.HOLV7ELL: Is it necessary to read it?
He testified he didn't have any communication.
THE COURT: He is going to ask him if he' heard
any such ting. I will permit it.
"Q Thereafter did the engineer of 1691 contact
you?
"A Yes, he did, at about 12:48.
"Q What did he say?
"A He asked me as stationmaster how long are we
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A- 424
going to sit out here, and I responded to him that we would
try to get you in as soon as possible and at that particu
lar moment, he indicated that he thought he had gotten the
signal but I noticed later on that he had not.
"At that particular time, since it was my custom
the moment I contact a train coming out of the tunnel, I kno^
he was going to be on the track in 30 seconds, I wrote the
time down, 12:48, but he didn't actually arrive at track 16
at that time.
"During this chaotic period I forgot to change
the time.
[424]
rk.mg 33 Hodges-direct
"Q Did you say anything else to the engineer on
train 1691 when he called you?
"A I told him when he got in to pull west on track
16 because we had line 3 out of service."
Page 109:
"Q Now as I understand, you were in communication
with the engineer and conductor of train 1691?
!‘A Yes. At about 12:48.
"Q Did they first communicate with you or you
communicated with them?
"A They communicated with me.
"Q To ask why they were being held?
"A Right.
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[ 4 2 5 ]rk:mg 34 Hodges-direct
A- i 2 5
”0 And your reply was?
"A We will get you in as soon as possible.
Q Then what was the next communication you had
with him?
A Right following that I asked him when he came
in on track 16 to pull west and clear the signal to go
east out of line 3.
"Q Did he acknowledge the receipt of the order in
any way?
A It was the same conversation. He said OK."
Mr. Hodges, did anything of this happen that
night?
Nothing*whatsoever. The only conversation I had
on that night was with my engineer, with my flagman, who I
instructed to try and contact the stationmaster and I
poke to m\ engineer directly on the radio that we had no
nrnunications and he had no communications with anybody
Y there would be a delay or to pull up on track 16.
T h e r e w as no c o m m u n ic a t io n s w h a ts o e v e r w ith a n y
body o u t s i d e t h e c r e w .
You did eventually pull into track 16?
Yes.
Did you make a normal stop or did you pull west?
The same spot we make every night with a car
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marker stop because we have ten cars and there are markers
there.
Q Let me read to you part of the testimony on
page 56.
"Q When 1691 pulled into the station, did it pull
west at all?
"A It did.
"Q Did it clear?
"A But it didn't clear.
"Q By how much didn't it clear?
"A It appeared to be 10 or 12 feet off.
"Q So it was most of the way west?
"A Right."
Did you make a normal stop that night?
A We make the stop we make every night where we are
supposed to at the ten-car marker that is set up to tell you
where to stop.
Q You didn't pull all the way west and miss by a
couple of feet?
A No, we made the normal stop that our train is
supposed to make.
Q When you got out of the train, did you hear a PA
announcement to tell you to pull west?
A Nothing whatsoever.
MR. RUBIN: No further questions.
[426]
rk*.mg 35 Hodges-direct
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about two minutes or so.
[433]
rkrm 7 S h e a r e r - d i r e c t
A - 4 2 7
Q Do you recall that night where the train that
departs at 12:11, departed from what track?
A Track 18.
Q
office?
Is that right adjacent to the station master’s
A Yes.
Q Do you know whether that train departed on time?
A Yes, it did.
Q
train?
About what time did you close the gates to that
A 12:10.
. ' Q What did you do then?
A I changed the sign and I opened up the 12:20
which is Train 400 which is on Track 9 and I went back into
the station master’s office.
Q Did you see Mr. Karris come out of the station
master’s office at any time about departure time of the
12:11?
✓ *
A No, I did not.
Q Is there any way he could have gone down to the
platform on Track 18 at 12:11 coming out of the station
master’s office without going right by you?
A Not unless he used the front door. There are
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[434]
r k r m 8 Shearer-direct
M 2 8two doors to that office.
Q Since you had closed the gate to 18 and if he
had gone out the front door, what would he have had to do
to get down to Track 18?
A He would have had to have crossed the waiting
room and go down the far staircase.
Q That would take more than just thirty seconds
or a minute to get down there?
A Yes.
Q Subsequent to Train 400 leaving at 12:21, do
you know whether there was any communication from C-Tower
that you heard regarding Line 3 being taken out of service?
A No, I did not hear anything.
Q How about at 12:39?
A 12:39 I did, yes.
Q What communication was that?
A C-Tower had called the station master's office
to inform us that Train 82 would have to be pulled west.
Q Which track was that on?
A 17.
Q What happened after that?
A Mr. Harris got ahold of the yard master that we
needed a drill crew to pull Train 82 west. I looked down
stairs. I notified the conductor and the engineer that they
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[435]
rkrm 9 S h e a r e r - d i r e c t
were going to be pulled west, for the engineer to take his
key out. You have to have your key out to be able to pull
this train west. I notified him and I came back to the
station master s office. X called the train out again, then
closed the gate.
Q Did you know after this that Mr. Harris
attempted to contact 1691 on the radio?
A I did not hear anything.
Q Were you ever given any instructions by Mr.
Harris to page the crew of 1691 and tell them to pull the
train west?
A No.
Q You were basically present in the station
master's office this entire time except for going out to put
up a new sign or open or close a gate?
A Yes.
Q Do you know whether 1691 platformed in its
normal position or did it platform west?
A Its normal position.
Q Could this be observed both from your booth and
the station master's office?
A Yes.
Q They didn't pull part of the way west, did they?
A No.
/V- 429
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Q They platformed in their normal position?^
A Yes.
[436]
rkrm 10 S h e a r e r - d i r e c t
Q What train does 1691 turn for?
A 1602.
Q Which departs when?
A 1:10 ray time, 1:11 railroad time.
Q Do you know whether it left on time or not?
A It did not
Q This is because a trainman came up to call?
A There were three brakemen on the train, I
believe, and they did not know which one was qualified to
take the train out, which one they were moving up as a
conductor, so one trainman came up at leaving time, got on
the phone and called the crew dispatcher to find out
who was going to run the train.
Q Then after he returned to his train, it had to
be pulled west?
A Yes.
Q If it had been properly positioned, he could
have just gone down and they would have gone out?
A Yes.
Q Just coming back again during this period from
12 *° c^°ch to 12:20 when that 12:11 went out, do you recall
eing any passengers come into the station master's office
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[437]
rkrm il S h e a r e r - d i r e c t
A- 431
to ask questions?
A I don’t recall, no.
Q Do vou have a practice, you and Mr. Harris, that
when he leaves he notifies you?
A Yes.
Q Do you recall his having notified you at any
time that he was leaving the station master's office during
this period?
A No. -
Q
10 and 11.
A
Q
Let's go to the next night, the night of November
Were you also on duty that night?
Yes, I was.
That was the night the Sperry cars were running.
correct?
A Yes.
Q Do you recall Mr. Harris taking a lunch break
that night?
A. Yes.
Q Between what hours?
A Around 1:45.
Q When did he return, approximately?
A About 10 to 3, 3 o'clock. More like 10 to 3.
Q It was during Mr. Harris' absence that the Sperry
cars were operating in Line 3?
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[438]
rkrra 12
Yes.
Shearer-direct A- 432
Q About what time did you find out about this,
or did you get definite word they were going on Line 3?
A The yardmaster called me about 2:30. He told
me that the Sperry car was going into Line 3; that we would
have to make track changes. We had tried to work through
A-Tower to hold off on taking Line 3 out until we got rid
of the 3 o'clock trains. At this time I had worked out the
track changes with the yardmaster by putting trains on
15, 16 and 17 because Line 3 was out and we had to move
everything over.
Q I show you what has been marked as Exhibit B
in this case, Mr. Shearer. That is a station master's train
record sheet for the night of November 10-11. Have you
seen that before?
A Yes.
Q Are any of the entries on there in your hand
writing?
A Yes.
Q Could you specify which ones are?
A Well, there are some here — I will start from
1:42* That is Train 81 which comes in at 1:48 and then it
continues down to 2:32. That is in my handwriting. 2:48.
2.21 got in at 2:27. That was my handwriting. Train
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[439]
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reported 2:26* got in 2:33 and there are a few others on
the bottom here. There is one that got in at 2:32, 2:21.
Between the hours I would say of 1:48 to 3 o'clock I guess
most was in my handwriting.
Q And the reason they are in your handwriting is
because Mr. Harris was not in the station master's office?
A Yes.
Q Did you observe Mr. Harris at any time working
on a handwritten report?
A Yes, I did.
Q About what time was this?
A About a quarter of 5* 10 minutes of 5.
G At that point did some problems start to
develop in the operations?
A Yes, and he didn’t have time to work on the
report at that time because we had been in some difficulties
and he had to put it aside.
Q Approximately 7 o'clock both you and Mr, Harris
were relieved; is that correct?
A Yes.
Q At the time you were relieved, did you see Mr.
Harris at all?
A Yes, I did.
Q What was he doing?
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[440] 14 rkrm 14 A'434Shearer-direct
A
logbook.
He was entering the activity of the night in a
Q And this would be approximately what time?
A Around well, I leave about 7:05 or so to go
get my coffee. It would be anywheres from 7 o'clock to
7:05.
Q Going back to the previous night, the night Line
3 was out of service, your practice is that if Mr. Harris
leaves the office, he always tells you so you will man the
desk?
A Yes.
Q Do you remember Mr. Harris leaving the office
at about 12:20 to help a passenger?
A No, I do not.
Q
to you?
Did he tell you to man the desk or say anything
A N o.
Q Do you remember Mr. Harris leaving the office
at about 12:25 to go give a lineup to the ticket clerk?
A N o.
Q And he didn't say anything to you to man the
desk while he went to see the ticket clerk?
A N o.
Q Basically during this whole period, you have no
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[441] rkrm 15 A 435Shearer-direct-cross
recollection or you don't know that Mr. Harris left that
office at all, he was there every time you looked; is that
right?
MR* HOLWELL: Object to the form of the question,
THE COURTr X will permit it.
A Yes. _
Q The only times you were absent would be briefly
for a minute to change a sign and open a gate and come back?
A Yes.
MR. STOKES: That is all I have.
CROSS EXAMINATION
BY MR. HOLWELL:
Q You work as an usher, right?
A Yes.
Q That means you go out and you put the sign up?
. A I call the trains. My job is to direct
passengers, give information, display signs, call out trains
Q Axe you out there •— when a train is loading.
re you out there helping them, directing them?
A Not necessarily. Most of the time I am in the
*Ce* ^ call out the trains and I am usually in with
Eddie.
0 And you put the signs up?
A Yes.
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[444]
rkrm 18 Bloomfield-direct A 436
A Mr. McKenna, the assistant station master that
had worked the middle trick had a note for Mr. Harris
relative to Line 3 going out of service sometime between
11 p.m. of the 9th and 7 a.m. of the 10th. He gave that
note to Mr. Harris and verbally informed him of the
information in the note.
Q What time was it you left at that point?
A I walked out of the office approximately 10:50.
On my way out I had reminded Mr. Harris of Line 3 going
out and to keep on top of it.
Q And you then left Penn ;Station and went home?
A Correct. .
G When did you first hear there had been train
delays during Mr. Harris' shift?
A When I came to work the following day, Mr. Gaynor
informed me of the fact there were delays.
Q This, is in the afternoon of the 10th?
A Right.
Q Did Mr, Gaynor give you any order or directions
as to taking any steps in regards to these delays?
A Yes, he did. He told me to talk to Mr. Harris
and have him make up a written statement relative to the
delays to Train 82, Train 1691, 195 and 1602. He also told
roe to speak to the yardmaster, Mr. Lehr, relative to the
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same train delays and to have Mr. Lehr make up a statement
[445]
rkrm 19 Bloomfield-direct k ' 437
as to what
Q
A
the 10th.
took place and why these delays happened.
What time did Mr. Lehr come on duty?
Mr. Lehr came in around 11:14 of the night of
I spoke to him between 11:20 and 11:30.
Q What time did Mr. Harris come on duty the night
of the 10th?
A He came on duty approximately 10:50.
Q At the time that Mr. Harris came on duty, did
*
you speak to him concerning these delays of the night
before?
A Yes, I did. I spoke to Mr. Harris. I told him
what was wanted of him, that I wanted him to make a writeup
of these delays to the four trains, why it happened. I gave
him an order to have this writeup ready for Mr. Gaynor
before he left the property to go home the following
morning and I asked him several questions about the delays.
Q Did Mr. Harris give you an oral report as to
what caused the delays?
A He stated to me that at 12:41 a.m. of the 10th,
A-Tower had taken Line 3 out of service without any warning
to him and that is what caused the delay to Train 82. I
didn't question him any further at that point. I wanted to
go down and see Mr. Lehr when he came in. At that time I
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rk rm 20 Bloomfield-direct A- 438
went down to talk to Ed Lehr about what he had to say and
the statement.
Q Did you ask Mr. Lehr to give you a written
report?
A Yes. I told Mr. Lehr to make up a written report
for Mr. Gaynor and to have it for him before he went home
in the morning.
At that time I did question Mr. Lehr about the
delays and he told me ~
MR. SOLLIS: -Your Honor, I object to this line
of testimony. It is pure hearsay. Mr. Lehr is here. This
witness has no personal knowledge of these events and if
this testimony is being offered as any probative value to
the fact —
THE COURT: It is being offered for the truth
of what Mr. Lehr said?
MR. STOKES: It is being offered basically to
show the investigation that Mr. Bloomfield made for Mr.
Gaynor and ultimately the information that was available
to Mr. Gaynor.
THE COURT: It is not being offered for the
truth of what actually occurred?
MR. STOKES: No.
THE COURT: I will receive it on that basis.
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rkrm 21 Bloomfield-direct A'439
It is being offered to show what Mr, Gaynor*s
reasons rather than the actual facts?
MR, STOKES: That is right.
THE COURT: Under the new rules, I believe it
is accepted.
MR. STOKES: Where were we, Mr. Reporter?
(Record read.)
A Mr. Lehr told roe that at approximately 12:05,
he informed C-Tower and Mr. Harris over the speaker system
that Line 3 would be going out of service following the
departure of Train 400. He stated that he had informed Mr.
Harris to make sure when Train 489 came in on Track 17 it
was pulled all the way west to clear the S-R signal.
When I questioned him he told roe that when 489
came in, to the best of his knowledge, it was placed
properly because Harris did not tell him otherwise. Also,
1691 was held out because no one had ordered C-Tower to
bring it in while this delay was taking place with Train 82
and when 1691 came in on Track 16, it was not pulled far
enough west and he had to send a drill crew over to pull
1691 west which caused to delay the Train 1602 and Train 195
of course was delayed because it was beyind Train 1691 in
Line 4 .
At that time I told him to write everything up
[447]
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and to make sure that Mr. Gay nor had it in the morning, and
I then left Mr. Lehr's office.
Q Did you write a report to Mr. Gaynor?
A Not at that time. I then talked to Mr.
Shearer, the usher that was on duty with Mr. Harris that
night. I had asked him questions about if he had heard
anything relative to Line 3 going out and approximately what
time it might go out —
MR. SOLLIS: I just want to make sure again —
. - THE COURT: This is not being offered for the
truth? . r.: L: ; .
~ MR. STOKES: It is not being offered for. the
truth.
THE COURT: Then it is received, ;
A .. (Continuing) Mr. Shearer stated to me at
approximately 12:05 he had heard Mr. Lehr come over the
speaker system and tell C-Tower and the station master's
office, Mr. Harris, that Line 3 would go out of service,
following the departure of Train 400 and that was approxi
mately all he had heard, and at that time I told Mr. Shearer
to write up a statement for Mr. Gaynor and leave it for him
in the morning.
Q You then sometime on November 10 drew a report up
of your investigation to Mr. Gaynor?
[448]
rkrm 22 Bloomfield-direct
A 440
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rkrm 23 Bloomfield-direct A - 4 4 1
A Yes* I did.
Q I show you a two-page document and ask you if
that is the report you made to Mr. Gaynor?
A Yes, it is.
MR. STOKES: I show it to counsel and I ask that
it be received in evidence.
MR. SOLLIS; Your Honor, I object to the
admission of this as an exhibit in evidence. First of all,
it was prepared pursuant to an investigation by the railroad,
Mr. Gaynor asked Mr. Bloomfield to prepare this report in
connection with the investigation. I believe Mr. Bloomfield
stated in his deposition at the time Mr. Gaynor asked him
to prepare this report, Mr. Gaynor already told him that
he had severe doubt as to Mr. Harris' entry into the logbook.
THE COURT: That does not go towards its
admissibility.
MR. SOLLIS: It also contains hearsay statements.
THE COURT: I understand all of that. It will
he received.
MR. SOLLIS: Is it being offered —
MR. STOkES: On the same basis as the witness*
testimony is being offered, to show what basis Mr. Gaynor
had when he acted, the information that was available to him.
THE COURT: It will be received.
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[451]rkrm 25 Bloomf ield-direct
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Q Subsequent to talking to Mr. Lehr and receiving
his oral report, did you again talk to Mr. Harris about the
delays?
A Yes, I did. I asked Mr. H a m s if he was sure
that no one had informed him that Line 3 would go out prior
to 12:41. He stated very adamantly that no one had informed
him and due to his attitude, I didn't pursue the questioning
any further. I knew this to be contrary to normal procedure,
0 Did Mr. Shearer give you a written report?
A do. He left a report for Mr. Gaynor that
morning.
0 You didn't see that report?
A I have seen it, yes.
Q But you did talk to Mr. Harris again?
A Yes.
Q What was the substance of your conversation with
Mr. Harris?
A On the night of the 10th into the 11th, when I
talked to him again, I had asked him about the delay of
Train 82 and whether he had been informed at what time Line
3 would be taken out and he said no one informed him before
12:41 when it was actually taken out of service. As I said,
I didn't pursue the questioning any further because he
seemed rather upset that I even asked him.
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[455]
rkrm 29 Bloomfield-direct A - 4 4 3
It is not just about the mental state of Mr,
Gaynor.
THE COURT: Not the mental state.
MR. HOLWELL: Also as to what the facts were.
THE COURT: Isn’t the claim here that he has
been discharged improperly solely on the basis of discrimina
tion?
MR, HOLWELL: And without any cause.
MR. STOKES: According to you, Mr. Holwell. I
wouldn't concede that.
THE COURT: Something is going to have to be
briefed.
MR. HOLWELL: We have briefed that before.
THE COURT: I want it briefed in connection with
this hearing.
MR. HOLWELL: Sure.
MR. STOKES: On what point?
THE COURT: The standards that the Court has
to take in connection with the firing of management
personnel.
MR. HOLWELL: The legal arguments are twofold.
One is the 14th Amendment, whether or not an institution we
claim to be a part of the state can remove him without
giving him any type of a hearing and, second of all, whether
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[456]
rkrm 30 Bloomfield-direct
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or not he was removed in any event as a result of racial
discrimination and as far as the second point goes, I think
if we establish that he was fired without due cause, that
we certainly have very strong evidence that the second point
has been brought home.
MR. STOKES: First of all, your Honor, the
Sinderman and the Roth cases make very clear — we will
brief that point, but in regard to the last, just what Mr.
Holwell says makes it clear why all of this is very germane
what was in Mr. Gaynor's mind.
THE COURT: I have decided it is admissible.
It will be considered.
BY MR. STOKES:
0 Was Mr. Gaynor present at this point?
A At that point, no, he was still outside, he was
talking to someone.
Q Did he shortly thereafter come in?
A Yes, he did. He came in to speak to Mr. Harris,
and in view of the fact that Mr. Gaynor was there, I didn't
bother questioning him as to why the report I ordered was
not there.
Q But you remained present during the entire
conversation between Mr. Gaynor and Mr. Harris?
A Yes, I did. I sent Mr. McKenna out to handle
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the gate control and I had stayed in while the conversation
between Mr. Gaynor and Mr. Harris took place.
Q You weren't in or out or anything, you were
standing right there next to Mr. Gaynor and Mr. Harris
during the entire time?
A That is correct.
Q And at the conclusion of this conversation, what
happened between M r . Gaynor and Mr. Harris?
A At the conclusion of the conversation, Mr. Gaynoi
told Mr. Harris that he was relieved of his duties as an
assistant station master and that he was to exercise his
#r . ; * r" r-. *
seniority as an usher and he was to report to Mr. Mezanati
in Jamaica to take care of this the next day. At that time
Mr. Harris made a remark that rather shocked me. He said
he would see us in court. You know what this means, we will
be back in court and they will put me back to work.
Q Did you prepare a report to Mr. Gaynor confirming
all that you had observed during this conversation?
t y c . _ ;
A No, I did not. Mr. Gaynor said he would prepare
a report for Mr. Dixon, the Assistant Superintendent of
Transportation, and when it was done, he was going to ask me
to read it and witness it.
Q Is this your signature witnessing Mr. Gaynor's
report to Mr. Dixon?
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A Yes, it is.
MR. STOKES: I ask that this be marked for
identification.
(Defendants' Exhibit L marked for
identification.)
Q How long have you been working at Penn Station
in your present capacity?
A Since January of '76.
Q Have you had occasion to work directly with
Mr. Harris during this period?
A Yes, I have.
Q Has he ever made complaints to you about A-Tower,
C-Tower, the yardmaster*s office, 40 Office or anyone else
in a supervisory capacity at Penn Station?
A Yes. He has made complaints about A-Tower.
Q Has he complained about anyone else?
A No.
0 What were the nature of his complaints about
[ 458]
rkrm 32 Bloomfield-direct
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A-Tower?
A He stated to me on several occasions when he has
tried talking to A-Tower, they didn't answer the phone or
that they didn't give him the necessary information he
requested.
Did you give Mr. Harris any advice JL
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Q Did anything strike you as being unusual
in the log?
A Yes. When I read the log book that morning
I saw that Mr. Harris' writeup in the log book had
stated that A-tower had taken out Line 3 without no warning
at 12:41 A.M* in the morning.
Q Is this normal railroad procedure?
A No, it is not.
Q Is it good railroad procedure?
A NO.
Q Now, on that same morning, did you receive a
call from your superiors at Jamaica about the delay?
A Yes, I did, I received a call from Mr.Dixon
and at this time he told me that I should go ahead and
get all the facts which at that time I told him I would.
Q Did he ask you to give a writeup to him?
A Yes.
Q Did you then undertake an investigation?
A Yes, I did.
Q What did you do?
A Well, that morning I contacted Mr. Diaz to see
if there was a note and information left for Mr. Harris,
that regards to Line 3 getting out somewheres between
11:00 P.M. and 7:00 A.M. in the morning and he aid there
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[483]
dwb 4 Gaynor-direct A - 4 4 8
was. So then I proceeded, I went up to 40 office,
which is headquarters for Amtrak operations, where I
went in and spoke to Mr. DiCataldo, and I believe it
was a couple of other Amtrak officials in the 40-office
at the time. And I wanted to know why that they had
taken out a line without notifying nobody, and there I
was told that they had information from the morning from
their train director at A-tower that the yardmaster and
C-tower and all the towers did have pre-warning before the
tunnel would be taken out.
This was done some time around the area of
midnight. So with this, I asked him what kind of informa
tion they did have at that time. And he said, well, we
know the plate order was put out at 12:41, but that
the train director had spoken to the yardmaster and also
that he had put the hold on Line 3 prior to 4 00 leaving,
telling all the towers, which includes C tower, the
stationmaster's office that Line 3 would definitely be
out after 400 left.
Q Did you speak to Mr. Bloomfield at all that
day? • ,
A Yes, that afternoon, Mr. Bloomfield came in,
I told him that I wanted a writeup from Mr. Harris, and
Mr. Lehr, and also see if he could get some information
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(jwb -5 Gaynor-direct
from C-towcr and that,as to what had transpired that
night. I also spoke to Mr. McKenna when he arrived
that afternoon, and I asked him had he definitely
talked to Mr. Harris, and that there was a note left
that also during the night that that tunnel would be taken
out and he says, yes.
Q Did you speak to Mr. Civitillo at all that
day?
A Yes, I called Mr. Civitello,that was in the
afternoon and I had asked him about taking out, that the
stationmaster was made aware that Line 3 would be taken
out during the night and he says that their conversations
were over through the speaker systems, that after 400
left that night, which came from A-tower to all the towers,
including C-tower, and the stationmaster's office, that
definitely after Train 400 left that night, Line 3 would
be definitely taken out.
And he also told me that he heard in conversa
tion with Mr. Lehr, the yardmaster, telling Mr. Harris
over the speaker system,direct line speaker system, that
starting with Train 82, all other trains following
vould go out Line 1 that night, and also, starting with
*rain 4 89, when they would come into the station, and-
everything else after that would have to definitely be
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[4851dwbp.6 Gaynor-direct
pulled west on 16 and 17 track so they could go out in
the opposite direction to Line 1.
Q Mr.Gaynor, you have been in the stationmaster's
office, haven't you?
A Yes, sir.
Q Could you briefly explain the system of
speakers that are in the stationmaster's office?
A Yes, we have two type systems in there. We
have a three-way direct line system which is hooked up
between the stationmaster, the yardmaster and C-tower.
Then we have another speaker system in there
where A-tower talks to C-tower, the stationmaster, JO,
Harold Tower and F-Tower.
Q So that whenA-tower announces to C and F and
JO and the other towers that there will be a hold on Line
3 after 400, that information is heard in the station-
master’s office?
A Yes,it is.
Q Have you ever been working in the station-
master's office when Line 3 was scheduled to go out? »
A Yes.
Q Is it the general practice for A to call you
on the direct line phone to tell you that the line is
going to go out?
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[486]
d w b - 7 Gaynor-direct
A 1 5 1
A No. This is done strictly usually right
through the yardraaster and then we pay attention to the
calls coming through the speaker system from A-tower.
Q Has Mr. Harris ever complainted to you in the
past that the yardraaster has not communicated with him/ ~
A NO.
Q On the morning of November 11th, did you receive
the reports that you had requested from Mr. Lehr and
Mr. Harris?
A No, I did receive a report from Mr. Lehr, but
I did not receive a report from Mr. Harris. I was
told by Mr. Rizzacasa, who is a trainmaster working that
morning, that Mr. Harris had gone home but did call and
say he would make out a report while at home that day
and bring it in that night.
Q Did Mr. Lehr leave a report?
A Yes, he did.
Q Nhat was the substance of that report?
A To the fact that he had been told A-tower
that line 3 would be taken out after 400, and that he had
relayed this information on to the stationmaster and
C-tower.
Q Is it the normal practice for the yardmaster
to give a lineup to the stationmaster?
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[487] A-452
dwb-8 Gaynor-direct
A Yes.
Q
trains?
In giving a lineup would he ever leave out
A No, he would not.
Q you receive any calls from your superiors"
in Jamaica on the morning of the 11th concerning the delays
of the 9th?
A Yes, I believe Mr. — yes, Mr. Dixon did call.
Q What did he say to you?
A He asked me if I had the information to
determine the facts as far as the delays and that were
from the night of the 9th‘ and 10th of November. I told
him that I had most of the information, but I still did
not receive the writeup of Mr. Harris.
Q What did he say to you then?
A He told me he wanted that writeup that night
and I must get it that night for him.
Q Had you received any other writeups other
than Mr. Lehr's?
A Yes, I received one from Mr. Sherer that day,
and also from Mr. Bloomfield. The one from Mr. Sherer
saymg that he did hear over the speaker system at some
time around, shortly after midnight, that Line 3 would go
out after what train,he couldn't remember what train it
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[489]dwb-10 Gaynor-direct /y 453
A He says, not only did I request from Mr. Harris
a writeup, he says, I give him a direct order, and this
is an act of insubordination. He did not comply with it.
Q Did you later receive a writeup from Mr.
Bloomfield?
A Yes, I did.
Q Did you request that writeup?
A No, I didn't request a writeup.
Q I show you Defendants' Exhibit J in evidence,
and ask if this is the report that you received from Mr.
Bloomfield concerning the insubordination of Mr. Harris?
A Yes, it is.
Q When did you receive that?
A I received that off of Mr. Bloomfield some time
in the evening of the 11th.
Q What did you do the remainder of that day
on the 11th?
A I went on my regular tour of duty, which I
handle the operations for the Commission now, which is up
till about after 7:00. I guess about 7:30 or so I went
°ut, I had dinner that night. Then I came back to the
stationmaster1s office some time around ten o'clock that
n i g h t . -
Q You were waiting for Mr. Harris?
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[490]
dwb-11
A I was waiting for Mr. Harris’ report, right.
When he came in did he give you the report?
Gaynor-direct /\- 454
Q
A No, he did not.
Q Did you know of a conversation with Mr. Harris?
A - Yes, I did. I had asked Mr. Harris when he
come in, did he have the report, and he said no. I says,
I asked him how come? And he says that he rather go to
the dentist in the afternoon, and he has some more import
ant things to do during the day.
Q Did you ask him why he didn’t stay the morning
before and write the report?
A I did, yes. I asked him, I says, even if —
I asked him why I didn't get the report the day before and
he had told me that he had been too busy through the night
to make it.
So I asked him at that time, I said, couldn't
he have stayed over and made the report out for that
morning, which I didn’t get no answer for that.
Q Did you ask him about the facts of the
9th?
A Then I asked him what happened, I asked him
first did he receive a note from Mr. Diaz or Mr.
McKenna as to the line being taken out between 11:00
p.M. and 7:00 A.M. And ha says yes.
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[491]
dwb-12 A 455
I says, did you try to contact A-tower that
night?
He said yes, I tried one, but nobody answered.
I said, did you try again?
He said no, I started to get too busy.
So I askedhim, I says, I said, were you aware
that Train 4 — I says, I understand from Mr. Lehr, and
Mr. Civitillo and that 40-office that I have information
pertaining to the fact that you were made aware through
conversation with Mr. Lehr and also the speaker system
that Line 3 would go out some time right after 400.
He said at that time, he says, they were liars.
So at this point I says to him, I says,
would you kindly tell me what happened that night? I says,
weren't you told by — - I brought up the fact again, I
says, weren' t you told by Mr. Lehr over the speaker systemI
to you that Train 489, when it comes in on Track 7, that it
must be pulled west and all other trains that night must
be pulled west? I says, and 1691, which followed? I i
says, weren't you told also that Train 82, which is the
»
first train that turns on the same track from 489 must
go out Line 1?
He says no. He says he was not aware of
ft until A-tower took the line out at 12:41.
Gaynor-direct
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[492]
dwb-13 G a y n o r - d i r e c t
A 456
Then I confronted him with, I says, well,
1691 came in later, and I says, did you pull him west?
At that Mr. Harris didn’t answer me.
Q Do you remember him specifically stating that
the other people were liars?
A Yes.
Q After you were done speaking about the events
of the 9th, did you then tell Mr. Harris anything else?
A I spoke to Mr. Harris and I told him, I
says, as far as not getting no writeups from you, and I
says, as far as your attitude towards being a manager,
I says, has a lot to be desired, and I felt that he was
incompetent in handling the job and I told him that the
next morning report to Mr. Mezanolti, stationmaster in
Jamaica, so he could exercise his rights as an usher, and
at this time, Mr. Harris walked over to the door, took
his check out, went over, grabbed his coat and as he was
walking out, you know what this mean?
I says, no; he says I am going to take you to
court and you know that they will put me right back here
> V
again. n' - . *
\
Q What were the fundamental considerations that
you had in mind when you told Mr. Harris to exercise hi
seniority?
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[493]
dwb-14 Gaynor-direct
A 457
A His attitude, his acts of insubordination,
no change in his attitude towards making writeups, his
lack of willingness to accept responsibility, and his
attitude toward his fellow employees.
Q Did you have in consideration his whole record
of past discipllines?
A Yes*
Q Including his insubordination in September of
1975?
A Yes.
S Q Is this the first instance in which Mr. Harris
failed to submit a writeup when specifically requested?
A No, there have been, since last year, since
last December on through now, there have been four or five
different occasions where I have requested writeups from
Mr. Harris and I never got them.
Q Have any other ASM's referred to given you
writeups when asked?
A No.
Q After Mr. Harris left what did you then do?
A I got a hold of Mr. filoomfield, who was in
the office at this time, all this time. I told him to go
out and get Mr. McKenna, who is outside supervising
our gate control loading, due to a rock concert that night,
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[494]
d w b - 1 5 Gaynor-direct
A- 458
and I had come back inside to work the rest of the
evening as an assistant stationmaster.
Q By the way, was Mr. Bloomfield present during
your entire conversation with Mr. Harris?
A Yes, he was.
Q So Mr. Bloomfield went out and got Mr. McKenna?
A He went out and got Mr. McKenna, brought him
back to continue the duties of assistant stationmaster.
Q Did you then have a conversation with anyone
else that evening?
A Yes, later on I called, I guess some time —
it must have been after midnight, a little after midnight,
I called Mr.Dixon and I told him what happened.
Q And what did he say to you?
A I told him what I had — I explained to him
over the phone and I told him that when I was looking for
Mr. Harris* writeup that night to give his explanation
as to what transpired, that he did not bring it in. That
he cou?d— that he had to go to the dentist during the day
and that he had told me that he had more important things
to do when I asked him could he give me an hour or so
during the day to make this writeup, to bring it in that
Bight.
Q Did you thereafter write a report for Mr. Dixon7
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[495]
dwb-16 Gaynor-direct A 45S
A Yes, I did.
Q I show you Defendant's Exhibit K marked
for identification. I ask you if this is that report.
A Yes, it is.
MR. RUBIN: I move to have it marked in evi-
dence.
MR. STOKES: If I may, your Honor, I had
marked that exhibit for identification when I had Mr.
Bloomfield on, on his direct examination.
THE COURT: I have it marked for identifi
I don't have it in evidence.
Any objection to its being offered in evidence?
MR. SOLLIS: No objection.
THE COURT: Then it is received.
(Defendants' Exhibit K was received in
evidence.)
Q When did you write Defendants' Exhibit K in
evidence?
A That was right after, some time shortly after
that I had relieved Mr. Harris of his responsibilities
t .
of assistant stationmaster. ?
Q Approximately 12:00 to 1:00 o'clock that night?
A Some time right after that.
Q You delivered it to Mr. Dixon on the next day?
A Yes, it was.
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[496]
1 d winch r-aynor-d i rect K- 460
O In your experience as a terminal superintendent
at Penn Station, have you ever been on duty when a line
was scheduled to go out?
A Yes.
Q V.’hat is the responsibility of the station
master when this occurs?
iie fjets the track changes from the yardmaster
and then, in turn, his responsibility is when the train
somes into the station that he is required to get ahold
of the train, the respective track going in on 17 or 16
with one of the lines out, like 3, to pull the train west
cf the signals that are in the station there, which
would be on 17 track 3-Pv signal, and on 16 track the
10-R signal.
Ilow does he communicate with the train crews?
A Via radio, and if the radio is not working
he would contact them with a public announcement, PA system,
ond if it meant even then if he couldn’t get them, then
he would go down on the platform and contact them as they
came into the track.
n Ts that standard practice to have the drill
crew waiting on the platform as the trains arrive to pull
them west?
A No way.
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[499]
4 d winch Goynot-cross
you've obviously had an opportunity to hear what Mr. Harris
j
has had to say, as well as the other witnesses who have
been called by the railroad so far; isn't that true?
A It's true.
Q Have you listened carefully?
A Most of the time.
Q Good. Good.
Mr. Gaynor, you don't'work the same shift as
Mr. Harris, do you?
A • No, I don't.
Q In fact, you only have seen him at work at
the most once or twice since the last time we were here
before Judge Gagliardi?
A I think it's only been a couple of times, right
0 So it would be fair to say that you don't
have very much personal knowledge as opposed to what other
people may have told you of how the station normally
operates between 11:00 and 7:00 when Mr. Harris was
normally on duty?
A I have general knowledge of what, how the
station works, yes. . 5
Q But, as far as the nuances and so on between
11:00 and 7:00 you are not there, you obviously have —
- \
A I still have general knowledge. I must have
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[506]11 dwmch Gaynor-cross A- 462
this information to Mr. Harris?
A No. I have- quite a bit of reliance on
Mr. Bloomfield, and I know when he tells me he told
somebody I know he told them.
Q Other than this reliance you are talking
about, you have no personal knowledge?
A No, I didn't talk to Mr. Harris personally,
but I just tell you I do it through my subordinates.
Q Now, Mr. Gaynor, as I recall, Mr. Harris
said that at times he would ring up A-Tower on the
direct line and that A-Tower wouldn't answer, and that he
go' to the point that he almost gave up trying to talk
to A-Tower; isn't that correct?
A Yes; I believe he should ring more than once
%
or twice.
Q I recall that you told Mr. Morra and Mr.
DiCataldo that you would appreciate it if A-Tower also
attempted to notify the stationnaster with at If st the
major information that was being passed on to the
yardmaster; isn't that correct?
A That’s correct.
Q And I suppose one of the reasons you made
this request was that A-Tower controlled all the movement
to and from Pennsylvania Station, and therefore it's
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[513]
19 d winch r.aynor -cross
A 163
it, if you would, in the next question.
Now, is it your testimony that you read
Mr. Harris ’ entry there in the log book which was reprosente
here by Plaintiffs' Ibdiibit 3?
A Yes* __
o And does it contain his explanation as to
what occurred during his shift with respect to those four
trains?
A Yeah, there was just mention of the
fact that A-Tower took the tunnel out without giving
anybody, pre-notice to anybody.
n You were a bit concerned about that statenent
that A-Tower had taken the line without any prior notice
to Mr. Harris, weren't you, ?1r. Gaynor?
A ' Yes, sir, I was.
n This claim that A'-Tower had taken the line out.
ofservice without any communication to fir. Harris disturbed
you, among other reasons, becasue this was similar to the
complaints that Mr. Harris had raised before concerning
communication with A-Tovrer and the stationmaster’s office?
A Yes.
O In any event, A-Tower*s decision to take a
track out at 12:41, which is the scheduled departure time
°f the hong Island Rail Road number R2, would make the
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[515]
20 dwmch Haynor-cross A- 164
A That's correct.
Q You told me that you were very anxious to get
to the bottom of things, isn't that correct, Mr. Gaynor,
to talk to as many people as you possibly could to get
to all the facts?
A That’s correct.
Q . You stated that you spoke to Mr. Dixon around
lunchtime of November 10 and you told him that you were
starting an investigation into the facts,' and you were
going to get writeups from Mr. Harris, Mr. Lehr and, if
possible, you were going to talk to A-Tower and C-Tower
and you were going to do whatever was necessary to really
get to the bottom of this matter.
A That’s correct.
Q It is your testimony that Mr. Dixon requested
a written report from you?
A That is correct.
Q As I recall you told me in your deposition
that you were going to get written statements from,at
least the Long Island Rail Road employees, because whenever
there is human negligence leading to a delay of Long
Island Rail Road trains you invariably demand a written
report.
A If there is a human error, yes.
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[525]
30 dwmch n a y n o r - c r o s s * 4 6 5
Q Waiting on your desk also on the rnorninq
of November 11 was a copy of Mr. Lehr's statement?
A Yes.
Q I show you a copy of it, as long as we are
discussing it. That's Plaintiffs’ 5 for identification.
Now, again, you read Mr. Lehr's statement,
didn't you?
A Yes.
0 I ’m sure you notice at the bottom of that
statement that Mr. Lehr states that "1602 wasn't in the
clear. The crew went over to pull west but conductor
wouldn't close the door until leaving time, causing a
delay for 1602."
A That's correct.
t
Q I recall you telling me that sometime after
you had read Mr. Sherer's report and Mr. Lehr's report
you got a call from Mr. Dixon on the morning of November 11.
A Yes.
Q' And you told me that Mr. Dixon called to find
°ut if you had everything, all the facts and the reports
you were going to write, and what caused the delays, and
you said to Mr. Dixon, "No, I'm still waiting for the
report from Mr. Harris."
A That's correct.
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[526]
31 dwmch A- 486Gaynor-cross
Q You felt that the only thing that was lacking
J
in your investigation was a report from Mr. Harris?
A At that time, yes.
Q In fact, however, at the time of Mr. Dixon's
telephone conversation with you on November 11, you hadn't
received a report from either A-Tower or C-Tower, had you,
Mr. Gavnor?
A No, I didn’t, just conversation from 40 office
and from Mr. Civitillo.
Q It is your testimony that you had a discussion
with Mr. Civitillo prior to this conversation on the
telephone with Mr. Dixon?
A I'm talking about in the afternoon of
November 10.
Q If I told you that Mr. Civitillo has testified
under oath, right in front of you, that he talked to you
on the afternoon of November 11, would that refresh your
recollection?
A I think it was November 10.
Q You personally hadn't spoken to Mr. Lehr at
this time, had you, Mr. Gaynor?
A No, I hadn't.
q In fact, you never spoke to Mr. Lehr prior to
the time that vou took Mr. Harris out of service as assistan
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3 3 d w e n c h
[528]
Gaynor-cros
A- 467
MR. ROLLIS: -- if you will boar with no on
that, Mr. Rubin.
THE COURT: Why not make it correct?
Ask him to exercise his rights.
A Exercise his rights, that's riqht.
MR. RUBIN: Could you read the last question
back, please.
(Record read)
Q Now, there is no mention in Mr. Lehr's
report, is there, Mr. Gaynor, of the delays of train 1691
a nd A 9 5 ?
A No.
0 There is nothing in that report as to who
decided to keep these trains out of the station, is t-here?
A No, there isn't.
c Mr. Bloomfield came on duty sometime during
the afternoon of November 11, 1976, as I recall your
testimony, Mr. Gavnor, and Mr. Bloomfield asked you if you
had received Mr. Harris' written explanation concerning the
events of November 9 and 10.
A That's correct.
0 And you told Mr. Bloomfield that you had not
received any report from Mr. Harris.
A Mo, I did not.
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A -16S
Q At this point, Mr. Gaynor, you had Mr.
Sherer s and Mr. Lehr s statements, you had spoken to
Mr. Civitillo on the phone, and the only thing that you
felt that was lacking was a report from Mr. Harris?
A Yes.
0 Of course, you had read Mr. Harris’ statement
in the log book as to why the trains had been delayed.
A Yes, just the two eastbound trains, and
the reason why A-Tower took the line out without telling
nobody.
[530]
35 dwmch Gavnor-cross
Q How, I ’m sure you noticed that Mr. Harris'
entry in the log book was about the same length as Mr.
Lehr’s written statement to you and was about twice as
long as Mr. Sherer's statement.
A I didn't take notice of that, really.
0 Well, if,I told you that I have counted the
words in both — '
THE COURT: That’s not necessary.
MR. SOLLIS: Are you directing me not to
continue?
THE COURT: Yes. Ask the next question.
Q And it seems pretty clear, Mr. Gaynor, doesn't
it, that Mr. Harris' story was that neither Mr. Lehr nor
C-Tower told them when the line was going out.
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[531]
36 d w m c h A- 469Gaynor-cross
A Would you repeat that, please?
Q Yes. In reference to the log book entry —
A Repeat the question, please. Just repeat the
question you asked roe.
Q Yes.
The question is: it seems pretty clear
from that log book entry that I've given you a copy of
that Mr. Harris' story was that neither Mr. Lehr nor C-
Tower had told him when the line was going out,
A It was self-serving, I believe, too.
Q The answer is that you see that's Mr. Harris'
story?
A Oh, yes, I saw that, definitely.
Q The ^ c t is, Mr. Gaynor, that you didn't go
home on the evening of November 11 at your normal quitting
time, which is 7:00 o'clock; is that correct?
A I left there around 7:30 or so. yes.
0 You went -- this is on November 11?
A That's correct, November 11. •
Q You went out for dinner?
A Yes, I did.
0 You came back?
A Yes, I did.
Q And the only reason you stayed around that
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37 dwmch Gaynor-cross A- 4 7 0
evening is to see if Mr. Harris showed up with the written
report in his hand?
A That I needed the written report from Mr.
Harris is correct.
Q And, of course, you are not normally at the
station at this time when Mr. Harris arrives, are you?
A Obviously not, unless there is some kind of
an emergency around. There have been times I have.
Q Now, between the time you spoke to Mr. Dixon
that morning, November 11, until the time Mr. Harris reported
for work on the evening of November 11, did you ever call
up Mr. Harris and tell Mr. Harris that, although it was
unusual, that you were going to be in the office when
Mr. Harris arrived that evening and you expected Mr. -Harris
to hand over his report-to you?
A No, I did not. He had already called Mr.
Rizzacasa and told him he was going to bring the report
in that night from work. He was going to do it at home.
Q So Mr. Harris walked into the office and
you asked Mr. Harris for the written report, and he told you
that he had emergency dental work —
A He told me he had — he didn't have the
report, right. I had asked him why he didn't make a report
out the night before, and he said he was too busy.
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40 dwinch r M ? lGaynor-cross
Q Now, Mr. Gaynor, didn't Mr. Harris tell you
that he rfould give you the report on the morning of
November 12 during this conversation?
A No, he didn’t tell me that.
Q Well, again I'd like to refer to Mr.
Bloomfield's deposition, page 79, and I would refer to
lines 13 through 17:
"Q Did Mr. Harris indicate that he planned to
write the report during the morning of November 12?
"A He indicated that he would have it in the
morning of November 12."
Do you remember that —
A No, I do not.
Q Mr. Gaynor, you told me at your deposition
that the reasons you took Mr. Harris out of service that
night were, one, train delays and Mr. Harris' refusal
to admit his responsibility for those delays; two, Mr.
Harris' failure to show up with a written report on the
evening of November 11; and, three, his past record.
Do you recall that?
A Yes. Right.
Q You also testified on deposition that his
past record, aside from the events of November 9, 10 and
11, in and of themselves weren't enough for Mr. Harris'
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4 1 d winch Gaynor-eross A 472
being removed from service in your mind.
A Repeat the question, please.
Q Yes.
I said, and you also testified during the
course of your deposition that his past record, aside
from the events of November 9, 10 and 11, in and of
themselves weren't enough for Mr. Harris' being removed
from service in your mind.
A Yes.
Q Apparently after you fired Mr. Harris, Mr.
Gaynor, it is your testimony that you sat down to write
your report to Mr. Dixon.
A I did not fire Mr. Harris. I relieved him
of his responsibilities as assistant stationmaster and
he was told to go back the next morning to exercise his
rights as an usher; correct.
Q I ’m sorry, Mr. Gaynor. I said that inadver
tently, but your immediate response after that was to
start to write your report; is that correct?
A I believe it was sometime later on that
/ .
evening, yes.
Q Was this before or after you talked to Mr.
Dixon on the evening of November 12?
A I don't recall now whether it was when he
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42 dwmch Haynor-cross t\473
it probably was after when I called him.
Q You didn't tell me you called Mr. Dixon
on the evening of November 12, did you, during the course
of your deposition?
THE COURT: Was he asked it or not?
MR. SOLLIS: Yes, he was.
THE COURT: Let's do it the way it should be
done. Let's have the question and answer. Do it the
way it should be done.
MR.SOLLIS: Page 263, line 7 — starting
with line 14 — line 3:
"Q Did you just work through the night on this,
Mr. Gaynor?
"A I believe it was the next morning. Either —
I believe it was the morning of the 12th, I guess.
"Q About what time did you have this written up?
"A I wrote the report the same night.
"Q And what time did you give it to Mr. Dixon
in the morning?
"A I believe it was sometime the following
morning.
MQ So you normally get in around 10:00?
"A I don’t know actually what time. It was
sometime the following morning.
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43 dwmch Gaynor oss A 4 7 4
"Q And this is the first communication you had
with Mr. Dixon?
"A On the writeup, yes.*
A I talked to Mr. Dixon on that night at
midnight, a little after midnight, on the phone. At that
time I didn't think of it, at that time.
Q Now, I'd like to refer you to Defendants'
Exhibit K for a few seconds, Mr. Gaynor, so if you'd like
to have that before you —
A Is this on the writeup to Mr. Dixon, K?
Q That's right.
You have had a chance to listen to Mr.
Civitillo testify, you have heard Mr. Lehr testify, and
I would just like to ask you some questions especially
in light of their testimony about your report.
This report is inaccurate, isn't it, Mr.
Gaynor, when you say in it that both C and Lehr told you
that Harris was “made aware" at 12:05 by the yardmaster
that 82 would go out line 1? In fact, C-Tower never said
anything about the yardmaster calling Harris at 12:05.
A Now, would you repeat the question, please?
Q I'll be glad to.
I say that, I'm asking you, your report is
inaccurate, isn't it, when you say in your report that
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d w b - 3 Gaynor-cross
A- 4 7 5
A No* Dut ifc is not the responsibility of _
the yardmaster checks the fouling.
Q Your answer is there is nothing in your report?
A No, but I am just trying to bring out the
.report here. You are bringing up the part about fouling.,
Q I understand—
A No, let me finish. You brought out the point
about fouling. It is not the yardmaster to check to see
if that train is fouling. It is the stationmaster who
has the actual vision. There in that station, they
can look out and see any part of that train. He knows
that tram is fouling. Now, if C-tower — the only way
he will know it is fouling when it comes like about a minute
and a half before leaving time he throws his
machine, he sets up the levers on that machine to put a
route, and a signal out, and when he goes to throw that
lever you are out of business if you don't —
Q Mr.Gaynor, I understand your understanding of
how things work, the way things ought to work. My
question is there is nothing in your report about Mr. Lehr's
request to C-tower that evening that he advise him of
fouling?
A No.
0 You don't mention any place in that report ,
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dwb-9 G a y n o r - c r o s s
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if the train directs up there, so he could get hold of
them which he does at times, they will call you, he goes
strictly business with the yardmaster as far as line
changes and the line will go out and they work in conjunc
tion with one another, and they talk to C-tower and in
turn the yardmaster talks to the stationmaster.
Q Mr.Gaynor, my question is, there is nothing
in your report to that effect, is there?
A No, about A-tower, but the man was already
aware of that.
Q This exhibit, Mr.Gaynor, we have just been
talking about, Defendants* Exhibit K, this is the detailed
writeup that Mr. Dixon had been pressing you for and that
you had been so anxious to complete „for Mr. Dixon, *
isn't it?
A Yes.
Q Based on what you told me before, you never
would have written this report to Mr. Dixon unless you
were completely satisfied that you had exhausted at least
the basic sources of information to make sure that you
had all the facts, isn't that correct?
A Yes.
Q You felt that it was so important to get this
report done that you stayed right there at the office and
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d w b - 1 0
you worked on it through the night after taking Mr.
Harris out of service?
A Not through the night.
Q Well, you worked on it right after?
A A couple of hours, right.
Q Andyour best recollection is that you either
gave this report through Mr. Dixon personally or had hand-
delivered to him the following morning?
A Yes,sir, the next morning I gave it to him.
A- 4 7 7
Gaynor-cross
right.
Q Youdiscussed the contents of that report
with Mr. Dixon,,didn*t you?
A Yes.
Q Mr. Dixon said to you in words or substance,
"Do you have all the reports?" And you said to Mr. Dixon,
Yes.
A Yes.
Q Now, Mr.Gaynor, if you hadn't been sitting
there at the station, which you admit was unusual,when the
time Mr. Harris came in in the evening of November 11,
Mr. Harris could have written that report for you during
the normal tour of duty, and you could have written up
your report the following morning based on Mr. Harris'
report to you, and you could have taken everything up the
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d w b - 1 1 Raynor-cross A 4 78
same way you did to Mr. Dixon on the morning of November
12, isn't that a fact?
A No, I could not on account of Mr.Dixon gave
me a direct order that afternoon, "You get that report
tonight.9* And he is my superior and I listen to him.
Q Isn't it a fact that Mr.Dixon had never asked
you to show up with that report by a given time? That
you simply promised him that you would report to him as
soon as you had all the facts?
A He told me he wanted that report that night.
Q Let me call your attention to your deposition
transcript, page 238, line 17:
"Q Had you promised Mr. Dixon that you would
have a written report the following morning?
"A I told him I would have — that I would go
to see Mr. Harris and have his report, and have everything
for him the following day.
“0 So you had promised Mr. Dixon a written report
the following morning?
"A I didn't promise. I told him I would try
to give it to him by the following morning.*
Q Now, do you remember me asking you
those questions and you giving me those answers?
A Yes, but I was always telling you I was
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dwb-14
Q This is an incident involving yardmaster
Gaynor-cross ' A- 479
Chauncey, isn't it?
A At that time I thought it was Chauncey, but it
was somebody else.
Q Your testimony is that it was somebody else?
A At that time, see, we were grabbing for straws
up there. Yoi were asking me something that happened
two and some odd years ago. At that time I wasn't sure.
We got another yardmaster there by the name of Bukowski,
that was just breaking in at that time, and he was involved
in a couple of mishaps, too, at that time.
Q So it is your best recollection now ——
A I told you at that time I thought it may have
been Mr. Chauncey, but since then I found out it was- a
fellow by the name of Mr. Bukowski, who at that time was a
young yardmaster who had just come from the Richmond
Hill Yards, and freight yards, and he was not too aware
of the station what was going on that night.
Q Wasn't this gentleman you have just mentioned
posing for Mr. Chauncey at that time?
A I don't know, I couldn't tell you, to be
honest, without checking the record, to be honest with you.
Q Let's move on to another entry, Mr.Gaynor.
This is on 12/16/74.
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A ' 4 8 0I 5 5 9Jdwb-I9 Gaynor-cross
they would put him back and the way the union agreement
reads tnat the move-up in men as the guys retire, this
man was automatically — he had to be put back into
New York. I did not want him, but the way the agreement
rules read, at that time I was forced to take him back
in New York, Mr. Chauncey.
BY MR. SOLLIS:
0 Mr.Gaynor, I would like you to show me an entry
in the log book made on August 21, 1975.
A Yes.
Q I don't think there is much doubt about that th:.
is an incident involving Mr. Chauncey?
A Yes, it is, that's correct.
Q. It led to the delay of a train for some 17
minutes, isn't that correct?
A That's correct.
Q As I recall you told me you made no written
investigationof this incident, but rather you just made it
a matter of record, isn't that correct?
A Yes, we did. We got a hold of him, he was
chewed out for it, and that was the way it went.
Q Mr.Gaynor, I'd like to show you some further
exhibits from the log book, further entries. Here is one
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[562]
dwb-22 Gaynor-cross
A- *181
Q Let me call your attention to an entry on
10/31/75, Mr.Gaynor.
You will see in the log book that Mr.Brown
states that Train Number PJ1230 was 21 minutes late on
account of yardmaster Chauncey thought that Line 3 was
going out of service at 12:10 ,arad the report goes on,
"Mr.Chauncey tried to pull the equipment off No. 17 to
the yard and apparently lost power and when the statioh-
master informed him why didn't he use Track 18 or 19,
apparently Mr. Chauncey told the stationmaster that Line 3
was out of service and the stationmaster sayd, no, that
isn't so, after he checked with A-tower,"and then the
report continues, and Mr.Chauncey finally checked
A-tower and apparently followed up on the stationmaster's
suggestion and used 18 track for PJ1230 and as the result o:
this the train left 21 minutes late.
Do you see that entry?
A Yes, right, I also see there where the station-
master did get in contact with A-tower for the information.
Q And you haven't come up with any written
investigation or a report concerning this incident, have
you, Mr.Gaynor?
A No, that was just what you call the making a
move with extra set of equipment. PJ 1230 does not mean
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[563] dwb-2 3
/I 482
Gaynor-cross
if he leaves an hour and a half late. It is an extra
set of equipment. We don't worry about that extra equip
ment. If it is a regular PM1230, a shop car going to
Jamaica, as long as he gets there before the rush hour in
the morning.
THE COURT: It is not a passenger train?
THE WITNESS: Just an extra piece of equipment.
shop car. It could leave two hours late, we do it.
your Honor. I wouldn't even worry about it. No criticisn
whatsoever.
THE COURT: I noticed that in Exhibit 3 —
THE WITNESS: There is a PJ1230 we use that
your Honor for, like -
your Honor.
THE COURT: There are a lot of them in here.
THE WITNESS: They are extra equipment trains,
What we do like if we get, we will turn off
equipment in Jamaica when we wind up any time of the night
or day, you know, with shop cars, so we take them u p
on the extras, so we don't have to hook them up on extra
equipment.
' '
We run it every night.
THE COURT: It was canceled that night?
THE WITNESS: We use it just because we have
shop cars in there. It is really nothing to get excited
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[564]
d w b - 2 4 Gaynor-cross
A 4- 8 3
about. It is just an extra equipment train.
BY.MR. SOLLIS:
Q Mr.Gaynor, I would like to show you an entry
on December 8, 1975, in the log book, right down here on
the right-hand corner, and I know that you recall this ei
quite well, don't you, Mr.Gaynor?
A This is the one with Mr. Chauncey on
this one, right.
0 That's right.
A And I think this was the one that that letter
was for. getting rid of Mr. Chauncey out of New York.
Q Right. And apparently Mr. Chauncey misrouted
train 857 to 2B on top of 762, and as the result Mr.
Chauncey, I think, if you will count them up —
A I know, I remember that night, sir, I don't have
to count them.
Q 38 trains, isn't that right?
A I think this was one of the nights that led
to Mr. Chauncey*s downfall that I disqualified him.
Q As the result again of Mr. Chauncey being
disqualified in New York, is that he had to work as a
yardmaster in a freight yard?
A I believe. I don't know where they put.,
him after he left New York. All I know is I gave him to
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iV- i 8 i[565]
u.. pixon,where he wanted to put him after that, I don't
Km»w, but I wouldn't leave him work in New York.
Q There is no difference in any pay in working
f
as a yardmaster in the freight yard and working as a yard-
master in Penn Station?
A No.
Q In fact today Mr. Chauncey is back in his
position as a yardmaster working in Penn Station, working
for the Long Island Railroad?
A Yes,sir, but that is only with union agreement.
That is the only reason he is back. I was forced to take
him back. .
THE COURT: The yardmasters are under union
contract?
THE WITNESS: Yes, they are.
THE COURT: Stationmasters are not. That
is a management employee.
THE WITNESS: That's right.
THE COURT: Under the union agreement they have
to have a hearing and so forth?
THE WITNESS: That's right, and also, we go
through the whole bit, you know, your Honor, the board and
everything else.
MR. SOLLIS: I have no further questions,
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[566]
dwb-26 Gaynor-redirect 4 8 5
your Honor.
THE COURT: Any redirect?
MR. RUBIN: Yes, your Honor.
REDIRECT EXAMINATION
BY MR. RUBIN:
Q Mr.Gaynor, in response to Mr.Sollis' questions
you stated that you had very little personal contact
with Mr. Harris, is that correct?
r
A That's correct.
Q You do get oral valuations from your subordi
nates?
A Yes, I do.
Q Concerning Mr. Harris' performance?
A Yes, I do.
Q You do read the logs every day?
A Yes, I do.
Q And they give writeups of the actions taken
by ASM and delays and everything else?
A That's correct.
Q Now,Mr. Harris isn't the only assistant
stationmaster who works the 11:00 to 7X:00 shift, is that
correct?
A No way.
Q And you put new men in there, people who are
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[567]
dwb-27
/i i8C
just qualified?
A Yes, I do.
Q ■ And they operate the station all by themselves
don’t they?
A That's correct.
0 And the fact that there is no assistant train
master there does not falter their capacity to handle the
station, does it?
A Mo way.
Q Now, when you spoke to Mr. Morra and Mr.
DiCataldo and said that you would appreciate it if they
would have A-tower contact the assistant stationmaster, wha1
did they answer you?
A They told me that if the man was not busy
that he would definitely have him called, but he would
still like to have the stationmaster continue to call them
up there on account of they have quite a bit of functions
qomq on at A-tower m d there are many times that they
can't get right to the stationmaster.
Q In fact that is not the normal practice for A
to all the stationmaster?
A No, he does business strictly with the yard-
master there.
Q The stationmaster could hear it over the
Gaynor-redirect •
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[568]
d w b - 2 8 Gaynor-redirect 4 8 7
loudspeaker?
A That’s the idea that youhave that speaker
system.
Q He gets it right from the yardmaster also?
A Right from the yardmaster, also.
Q Now, this log writeup that Mr. Sollis showed
you, there was no mention of Train 1691 and 195 being
delayed, is there?
A No, there was not.
Q You wanted explanations for those trains, too,
didn’t you?
A Correct. More so when I started to see the
station sheets there where I seen wrong times entered on
them and I saw writeovers on times of arrival that started
me to really want to ask questions.
Q That leads you to a conclusion?
A That led me to the conclusion that somebody
was trying to cover something up, I am geing honest with
you.
Q The fact is that Mr. Harris in the past noted
delays to incoming trains as well as outgoing trains,
hadn't he?
A That's right.
Q Mr.Sollis, in cross-examining you, stated to
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[569]
d w b - 29 Gaynor-redirect A 4.58
you that Mr. Civitillo had testified under oath that he
spoke to you on the 11th. Now, let me read to you from
the trial transcript. You had a previous --
"Q You had a previous conversation with Mr.
Gaynor?
"A On the telephone.
"Q Could that have been on the 10th instead of the
11th?
"A When was Wednesday?,
"Q It was the 10th?
"A Then I am sorry, it was the 10th, since working
nights I have my dates and times put together."
A
Does that refresh your recollection?
I can't remember. I know I talked to him
on the following afternoon. I am saying it was the 10th.
MR.SOLLIS: Can you tell me where you are reading
from?
MR.RUBIN: Page 414.
Q Now Mr. Sollis had also said to you that.
well, did Mr. Harris say that he would have the report on
the 12th, the morning of the 12th, and you answered, no,
I don't believe he did.
A That is correct.
Q And he said, you had not received the report
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from Mr. Harris when you ordered him to have it on the
night of the 10th, did you?
"A' No, I did not.
"q And Mr. Harris had promised to give you a
report when he came in that night and you did not receive
it?
"A That’s correct, from Mr.Rizzacasa. correct."
Q Did you have a'ny reason to believe that he
would have it for you on .the morning of the 12th?
A Not really, not the way things were going.
Q And isn't it a fact that on at least four or
five other occasions Mr. Harris has failed to give you write
ups?
A That has happened at least four, five times.
I requested writeups from him on different delys. I never
got them.
Q That is just in the last year?
A That is since I'll say the beginning of the
’/car, since December of like last year.
Q Since the last —
A Over the period of a year.
Q Previous to that he had given you trouble?
A That’s right, I hadn't had no writeups or
Anything else, also.
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[571]
d w b - 31 Gaynor-redirect /V 490
Q On the night of the 11th, when you took
Mr. Harris out of service, you did have reports from 40
office that there are at least 45 minutes prior to 12:41
that Line 3, there was a hold on line 3?
A And also that there had been several communica
tions through the speaker systems through that station-
master's office, and I can't understand why nobody could
ever hear them withthem speakers sitting right in front of
the desk and right here you get speakers all about you,
and even if you were standing in the corner by the door,
you still hear these speakers.
Q And Mr. Civitillo did tell you that he had heard
Lehr tell Harris to make su as the trains pulled west?
A That's correct.
Q Mr. Civitillo did tell you that he himself
announced over the speaker that there was a hold on 19 tracl
to go into Line 3 after 400 clears?
A That's correct.
Q He did tell you that when the train was reported
by Harold at 12:18 that he had Lehr tell Harris to pull
that train west, is that correct?
A That's correct.
Q You did have the report from Mr. Sherer that
stated over the loud speaker system in the stationmaster's
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A[572J., d*b- u
o((4v:o there was an announcement that Line 3 was going
to ho taken out — ■
A Yes, there did, some time around 12:05 that
.ho heard Line 3 would be taken out after train so and
so left, but he didn't have no definite train on it.
Q Now, Mr.Sollis asked you before, or implied before
that you had not answered his question honestly on page
263 of the deposition when he claims to have stated to you:
"Q When was the first time you spoke to Mr.
Dixon?"
Reading that I see the question"And this is
the first communication you had with Mr. Dixon? "
THE COURT: Page number.
Q On page 263.
"A On the writeup, yes.
"Q Was the first conversation you had with Mr.
Dixon on that writeup on the morning of the 12th?
"A I t w a s after midnight, right.
"Q On the morning of the 12th?
"A Yes.
"Q On the night of the 12th you spoke to Mr.
Dixon, correct?
"A Yes.
Q And then you wrote your writeup?
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='A That's correct.
"Q The first conversation you had with Mr.
Dixon about the writeup was the next morning?
"A That was in the morning when I broke it up with
him.
q So Mr. Sollis never asked you whether you
spoke to Mr. Dixon that night, did he?
A No, didn't even ask me that.
Q Mr.Civitillo told you that Mr. Lehr had re
quested him to notify him about fouling when you spoke to
him on the 10th, and isn't it a fact that Mr. Civitillo
testified that he never remembers hearing the conversation
at all before this Court?
A That is correct.
Q The yardmaster is a represented employee,
is that correct?
A That is correct.
0 Pursuant to union contract he would be
entitled to a hearing before he was —
A Yardmaster, definitely.
Q Did you know Mr. Landsberg?
A Yes, I did.
Q Who was Mr. Landsberg?
A He was assistant trainmaster that was assigned
[573],
dwb " ->J
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[574]
dwb~34
k-493
Gaynor-redirect
to work with me in New York.
Q Was he performing his job satisfactorily?
A No.
Q What action did you take there?
A I had him, I told Mr. Dixon about him, he
had him relieved, he sent him back to Jamaica, who
in turn where he ended up with being insubordinate with
Mr,Steele and he was put back in the ranks of a yardmaster.
_Q Was be given a trial or hearing?
A No way, no.
Q You mean he talked back to Mr. Steele?
- ; A He talked back to Mr.Steeele is correct.
Q And Mr.Steele didn't take him out of service?
A . Mr.Steele didn't take him out of service'.
Told him to exercise his rights as a yardmaster, and back
he went.
rj Mr, Landsberg was a management employee?
- - . A . Yes« .
MR. RUBIN: No further questions.
MR. SOLLIS: Very brief, your Honor.
THE COURT: Yes, certainly.
RECROSS-EXAMINATION
BY MR. SOLLIS:
Q During the course of your testimony, Mr.
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[575]
dwb-35 Gaynor-recross ' A - 494
Gaynor, Mr. Civitillo and Mr. Segreto testified that
Line 3 usually goes out after Train 400. Now that just
isn't so, is it?
A It is, I wouldn't say it goes out all the time,
but we — if you hang your hat on it, around that time it
does go out.
MR. SOLLIS: I have no further questions.
THE COURT: Anything further? You may
step down.
MR. STOKES: We have another witness ready,
your Honor, but may we have a break.
THE COURT: How long is your witness going to
be?
MR. STOKES: Shouldn't take long.
THE COURT: Long means what?
MR. RUBIN: I don't have more than five
minutes with him, your Honor. I can't speak for ■—
. 4
MR. STOKES: He is a short witness basically
as far as we are concerned.
THE COURT: Is that the end of the case?
MR. STOKES: Oh, no, no.
THE COURT: What else do we have?
MR. STOKES: We have tomorrow with, assuming
that tomorrow is available for us,we would have Mr. Dixon
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[576]
d w b - 1 6 A 435
and Mr.Zeman.
THE COURT: It is available for you.
All right, we will take a ten minute
(Recess.)
{continued on next page.)
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[577]
I dvnch R i z z a c a s a - d i r e c t A- 496
(In open court; all parties present)
MR. STOKES: Call Mr. Rizzacasa. Mr.
Rubin will conduct our examination
L O U I S J 0 H N R I Z Z A C A S A ,
called as a witness by the defendants, being
first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RUBIN:
0 By whom are you employed, Mr. Rizzacasa?
A Long Island Rail Road.
Q In what capacity?
A
Dew York.
I'm the terminal trainmaster at Penn Station,
Q
November 10?
Were you on duty on the morning of
A No, I was not.
Q Mr. Harris has testified before this Court
'bat he spoke to you on the morning of the 10th about
ciexuys to train 32 and your reaction was that you just
shrugged.
Did that ever happen?
A No, it did not. I wasn't on duty; I was home.
Q You were working on the morning of the 11th,
were you not?
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[578] ^2 dwmch R i z z a c a s a - d i r e c t
M 9 7
A Yes, I was.
Q And what time did you arrive in the station-
master's office?
A Approximately 6:45.
Q Did you relieve Mr. Harris?
A Yes, I did.
Q When you relieved him, what did he do?
A He took the log and went back on the desk
and started writing out the log.
Q Was the office busy at this time?
A No, it wasn't. Mr. Sherer was there and
Mr. O'Brien.
Q Do you remember whether Mr. Harris was
continually interrupted by questions from passengers.or
crew members?
A No, he was not.
Q Did there come'a time when Mr. Harris left
the office?
A Yes. Soon after Assistant Stationmaster
Constantino got in, about 6:55 or so, Mr. Harris I seen
going down 18 staircase toward the train 810.
Q
A
0
What time did that train depart?
7:02 a.m.
He grabbed his hat and coat?
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[579]
3 dwinch R i z z a c a s a - d i r e c t
M 9 8
A Yes, he did.
Q Did there come a time when you received a
telephone call from Mr. Harris?
A Yes, that was approximately 0:20, 8:25 that
morning.
Q What did he say to you?
A He said he was supposed to leave a report for
Mr. Gaynor, and that he didn’t make it out, forgot to,
and 1 told him bring it in that night.
o Mr. Harris has testified that he hung around
Penn Station for approximately an hour and tried to write
the report and took the, I believe, 8:11 train back home
and called you from home.
Could he have called you from home at 8r25?
A Impossible.
O Mr. Rizzacasa, were you on duty in Penn
Station around 1967?
A Yes, I was a yardmaster at the time.
Q Was there an assistant stationmaster by the
name of A1 Johnson working with you?
A Yes, there was.
n What is Mr. Johnson's race?
A Black.
0 He was working as an extra ASM before Mr.
M J I U l l t K N m w l i t e r C O U R T R I I ‘O R H ‘i lS. U S C O U R T H O U S I
[580]
4 dwinch Ri zzacasa-direct
Harris started working as an extra ASM?
A Yes, he was.
Q Did the railroad present any obstacles to
prevent Mr. Johnson from becoming an ASM?
MR. HOLWELL: Objection to form.
THE COURT: Sustained.
M 9 9
Q Did you work with Mr. Johnson?
A Yes, I did.
Q Did you try to help Mr. Johnson in the
performance of his duties?
MR. HOLWELL: Objection, your Honor.
THE COURT: Rephrase it, please.
Q Would you describe your working relationship
with Mr. Johnson?
A I asked Mr. Johnson any time he needed help
he was able to call me at home or in my office at any time
If there was any kind of problem, I would try to alleviate
this for him and explain to him what should be done.
Q Did he in fact call you at times?
A Yes, he did, several times.
Did you work closely with him?
Yes, I did.
Now, Mr. Harris has testified before this
Q
A
0
Court, Mr. Ilolwell has misstated to this Court
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[581]
5 dwinch Rizzacasa-direct rx 500
MR. HOLWELL: Objection, your Honor. The
record will speak for itself. We don't need representation
from Mr. Rubin as to what the witness said.
THE COURT: He just said he testified before
this Court.
MR. HOLWELL: He said that I misquoted
something.
MR. RUBIN: Excuse me. Mr. Holwell stated
to this Court that Mr. Harris was the first black in
management.
THE WITNESS: In Penn Station, Mr. Johnson,
as far as I know, was the first black.
THE COURT: The records ought to show that.
But that's your recollection?
THE WITNESS: That's my recollection.
Q You recollect that Mr. Johnson was working
before Mr. Harris?
A Yes, I do.
Q aqu don't know whether he was the first black,
do you?
A No, I do not, no.
Q Did you know Mr. W. C. Fuller?
A Yes, I did.
Q Who is Mr. Fuller?
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Rizzacasa-direct /\ 501[ 582]•rrwino
A Mr. Fuller was also an extra ASM. I treated
him the same way I did with Mr. Johnson.
Q Did you treat Mr. Harris the same way you
treated Mr. Johnson?
A Yes, I did. As a matter of fact, my supervisor
when he gave him the examination was Roger Milroy at
the time, tried to rephrase questions in such a way as to
try to pull the answers out of Mr. Harris, and I discussed
this with Mr. Milroy after the examination, and he said he
couldn't even do that, and that's why he failed the test.
Q Well, did you work with Mr. Harris after he
became an extra ASM?
A Yes, I have.
Q You worked with Mr. Fuller?
A Yes, I have.
Q Did Mr. Fuller start at about the same time
as Mr. Harris?
A Approximately around the same time.
Q Do you know Mr. Scott?
A Yes, I do.
Q Who is Mr. Scott?
A Mr. Soctt is our assistant stationmaster now.
He has the relief job. .
Q What is his race?
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[ 583]
7 dwmch
at the
black,
Rizzacasa-direct Pk 502
A He is black.
Q And M r . Fuller?
A Black also.
0 Do you know Mr. Brown?
A Yes, I do.
0 Who is Mr. Brown?
A Mr. Brown is an extra ASM, or was an extra ASM
time when I was in New York, and he is also black.
r> Do you know Mr. Mayes?
A Mr. Mayes, yes, I do.
Q What is he?
A He's an extra ASM also.
Q What is his race? " ' * ~ _ * ~
A And he is black. •
MR. RUBIN: No further questions.
THE COURT: Do you recall how many ASM's are
as far as you know?
THE WITNESS: Not offhand, your Honor.
THE COURT: Approximately.
THE WITNESS: Approximately, I'd say, fi.ve
or six.
THE COURT: How many are white?
THE WITNESS: Right now we have about, in
^ew York, three, I'd say.
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f 584]
dwrf 1
THE COURT: The others all work in New York?
Rizzacasa-direct A 5(3
Penn Station?
THE WITNESS: Yes, most of the time they work
extra in and out of New York and Jamaica.
THE COURT: Their extras that means they fill
in?
THE WITNESS: When there is a vacancy.
THE COURT: All right.
CROSS EXAMINATION
BY HOLWELL:
Q Mr. Rizzacasa, you spoke about a Mr. Johnson
who worked as an ASM he was never permanently assigned as
assistant stationmaster was he, he worked as an extra?
A He was an extra ASM but worked quite frequently
because we had a vacancy at the time.
Q An extra ASM is somebody who is used when there
is a vacancy in the ASM position, fills in, is that right?
A That's right.
Q You say there is a number of blacks who work
in assistant stationmasters1 positions-. Has the railroad
recently instituted a procedure whereby vacancies
for assistant stationmasters’ positions are posted an
people actually apply for those jobs?
A No.
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[585]
dwr£ 2 Rizzacasa-cross K- 5 0 4
Q They don’t have that kind of a procedure?
A No, they are appointed. They are appointed people,
Q There is no posting procedure whereby the manage
ment advises personnel of the availability or opening o f
assistant stationmasters' jobs and applications are made
for that position?
A Not applications. What they do is request
letters.
Q Excuse me?
A They request letters for this. If you are
interested in certain positions on the railroad and
that only goes for yardmasters, or any appointed position,
a letter is written to the supervisor and' then transferred
over to a higher echelon and he decides on who he wants
to pick.
Q I would just like to restrict my questions and
your answers to management positions such as assistant
stationmaster.
A A yardmaster is a management position, also.
Middle management.
Q I t h o u g h t y a r d m a s t e r s w ere u n i o n e m p l o y e e s .
A They are represented employees but they are
considered middle management.
Q Do you know i f y a r d m a s t e r s a r e g i v e n t r i a l s o r
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hearings before they are removed from service?
A Oh, yes, that can be done.
It can be done.
Q And they are management employees?
A What.
Q And they are management employees?
A I said middle management. Represented middle
management. Those jobs are not up for bid. They are
appointed positions middle management represented.
Q Now, let’s go back to the assistant stationmasters'
job. Maybe I misled you. I am not trying to imply that
they are put up for bid as a union job is. What I am
saying is that isn't it true with the assistant stationmaster'
job vacancies are announced and employees are requested
to make a letter application for that vacancy?
A Yes, they are.
In other words —
Q That is the procedure for filling an
assistant stationmaster's job?
A Not to fill it. You know you are not —
Q The procedure for getting applications?
A The procedure for getting applications of men who
are interested in progressing up the line, and getting
a job, their next step from an usher to assistant station-
[586]
dwrf 3 Klzzacasa-cross ^ ggg
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[587]
dwrf 4 Rizzacasa-cross
A~ 506
master and they want letters.
Q Isn t it a fact that the assistant stationmaster
which is populated by a few blacks these days is the only
management job on the Long Island Railroad where
vacancies are announced to employees and where interested
employees are asked to send letter applications in;
isn't that correct?
A Now a yardmaster position —
Q Aside from the yardmaster, we will put him in a
special category.
A What are you talking about now? You are talking,
about assistant trainmasters.
Q Assistant stationmaster. Isn't that the only
position in management on the railroad where vacancies
are made known to the employees, and the employees are
requested if they are interested, to submit letter
applications?
A They are requested, yes.
Q That is the only management job?
A That is the only management job that I know of
but that doesn't stop them to say that they didn't write
a letter for other positions.
Q No question about that?
A In other words, if you want to get ahead you write
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A 507Rizzacasa-cross
in letting the supervisor know that you are interested
in something.
Q Now, Mr. Fuller was also an extra, right?
A Yes, he was.
Q In other words, he was an usher who filled in
as an assistant stationmaster when heeded, is that right?
A Right, he was an extra ASM.
Q Mr. Harris was the first permanent black member
of management as an assistant stationmaster, wasn't he?
A I couldn't answer that because black, white or
yellow, it is the same to me. I don't go by color or race.
Q Well, you know Mr. Harris is black, don't you?
A I know Mr. Harris is black, I work with him.
Q Do you know of any other black permanent assistant
stationmaster who are in the railroad?
A I don't know, there might be some in Brooklyn
or Jamaica, I don't cover those positions.
Q But you don't know?
A I don't know if he is the first black, fine.
I don't know.
Q You say that on the morning of November 11th, Mr.
Harris left the office at about 6:55?
A Approximately around that time, 6:55, between
6:55 and say 6:58, 6:59, he grabbed his hat and coat and ran
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[589]
dwrf 6 Rizzacasa-cross ..
A- 50 S
down to 18 track.
Q Mr. Harris called you on the morning of November
the 11th, is that correct?
A On November the 11th he called me, yes, sir, about
like I say, 8:20, 8:25.
Q Did you mention Hr. Harris' phone call to Mr.
Bloomfield that day?
A I don’t recall. I think I only told Mr. Gaynor
about that phone call later on that day.
Q You found out when you spoke to Mr. Harris I
guess that there were delays to trans the prior evening?
A No, I didn’t find anything out from' Mr. Harris.
All Mr. Harris told me on the phone was that he was
supposed to make out a report which he failed to do
so and I told him fine, I says bring it in tonight.
Q Didn't he tell you that he was supposed to make
out a report with regard to some delays the night before?
A No, he didn’t say anything about delays. He
said he was supposed to file a report to Mr. Gaynor
that morning and he failed to do so, and I says,
well, bring it in tonight.
Q And the first time you found out about the
delays when you talked to Mr. Gaynor later that morning?
A Later that morning, I did.
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[590]
dwrf 7 R i z z a c a s a - c r o s s A-509
Q Let me read you some of your deposition transcript,
Mr. Rizzacasa, on page 37:
Line 7: >
"Q What did Mr. Harris say to you in that phone
call?
"A In the phone call he said, 'I forgot to make out
a report to Mr. Gaynor. I was supposed to leave there
about delays the night before.'
"And I says, 'If you haven't got it bring it
in with you tonight.*"
A ■ I might have said that because I knew there
was delays after that but at the time of the phone call
T cut him off short, because I was having a problem
in the station at the time, and I am telling you what.he ac
tually said that morning was, he failed to put a report in
that Mr. Gaynor wanted and I told him to bring it in that
night and I cut him short.
0 So you are saying now that Mr. Harris didn’t tell
you that the. report was — ■
A No, he didn't say anything about any delays or
nothing on the phone.
Q Your memory today is better than it was a
couple of days ago when I took your deposition?
A No, I just might have added that in, just reciting
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it, that's all.
Q Although Mr. Gaynor told you later that morning
that there were delays he never discussed it with you,
what the delays were all about, did he?
A No, I, my job entails more than this, and Mr.
Gaynor handles, that I was working manipulations at that time
for Thanksgiving Day and —
Q I just want an answer, yes or no, please.
[591]
dwrf 8 ------------
A No.
Q You didn't discuss the substance of those delays
with Mr. Gaynor?
A No, no. •*
Q To this day you don't know who was responsible
for those delays,"is that correct?
A Well, according to what I have, what do you
call, I seen,I understand the assistant stationmaster was
in charge at the time is responsible. If there is any
delay in the station at that time the assistant station-
master is the responsible person.
Q You are saying now that you do know who was
responsible for the delays?
A I said I am assuming if there was delays of that
day the man in charge is usually responsible for the
delays, which is the assistant stationmaster.
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dwrf 9 R i z z a c a s a - c r o s s a 5 1 1
Q Other than your assumptions, you don’t know
who was responsible for the delays, do you?
A N o , I don *t .
Q And I suppose it is possible that somebody
other than the man in charge could be responsible for
delays, isn’t that true?
A Sure, if a man fell asleep at the tower or
something or other like that a yardmaster made a boo boo
could be responsible. .
Q Like if a yardmaster forgot to tel.l the assistant
stationmaster something it wouldn't be the assistant
stationmaster's fault, would it?
A No, it would be the yardmaster's fault.
Q It would be the yardmaster*s fault?
A Yes, sir, but you got to go according to the
particulars now.
Q Well, I thought you said you didn't know anything
about the delays.
A I didn’t know anything about the delays.
Q How do you know Mr. Harris is responsible for
t*
them? .
j
A No, you are saying you are blaming the yardmaster
for something that maybe wasn’t his fault. Now, if it is
something, different particulars you can hang a
0
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dwrf 10 R i z z a c a s a - c r o s s J V 5 1 2
yardmaster on.
Q I'm not blaming anybody — -
HR.STOKES: Your Honor —
Q W h y d i d you conclude that Mr. Harris is
responsible?
THE COURT: Equipment failure.
Q It could be personal failure of somebody
else.
A Equipment failure but don’t blame it on a man,
one individual.
Q Did you just blame it on Mr. Harris?
A The man in charge,I said.
If it was the assistant stationmaster at the time.
If I was in charge it would be my responsibility.
Q So whenever you are on the job and somebody below
you screws up on the job, it is your responsibility?
THE COURT: I don't think he has indicated that
he knows the details of this to form an opinion as to
whether this was Mr. Harris* fault or not.
MR. HOLWELL: I think that's right, your Honor.
Q In addition, Mr. Rizzacasa, you don't know what
Me. Gaynor's conclusions were as to who was responsible
for those days, do you?
A No.
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dwrf 11 Rizzacasa-cross a 51 3
Q And although you worked with Mr. Gay nor he has
never advised you as to what the outcome of his investigatior
was?
A No.
Q The only thing that Mr. Gaynor ever told you was
that he took Mr. Harris out of service for not having
the report there that night, is that correct?
A That is correct.
Q There has been some testimony that you haven't
been a witness to, Mr. Rizzacasa, to the effect'of when
line 3 usually closes at the time of night on the 11:00
to 7:00 shift. Isn't it a fact that there isn't any
specific time that the line closes, that you couldn't
say that the line generally closes for example after train
400 departs?
A In my background experience as a yardmaster
I can give you that.
Now, if they request a line tunnel out after 12:00
o'clock, they certainly aren't going to make it 12:50. It
is going to be within that frame between 12:00 and 12:30.
So normally after 400 line 3 goes out.
Q You are saying that generally: the line goes out
after 400 departs?
A After 400, right.
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dwrf 12 Rizzacasa-cross
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Q That is based on your experience?
A That's right.
0 And you are as sure of that as you are sure of
all your other testimony today?
A Oh, yes, sir, 28 years of experience ought
to qualify me for that.
MR, HOLWELL: One more second, your Honor.
THE COURT: Surely,
(Pause.)
MR. HOLWELL: I have a few other questions of
a general nature but I think I can do that with Mr.
Dixon tomorrow.
THE COURT: You don't need this gentleman any
more. All right. You may step down.
(Witness excused.)
MR. STOKES: 10:00 o'clock, your Honor?
THE COURT: I have a sentencing and a couple of
pre-trials at 9:30 so it will probably be close to 10:00
o'clock. Be here at 10:00. *■
Now, how much longer are we going to go
gentlemen, I have got to prepare my schedule too.
MR. STOKES: We have two more witnesses, your
Honor, I would figure that we should be finished tomorrow
with those witnesses, and —
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Rizzacasa-cross[596]dWi. t i •> Rizzacasa-cross
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MR. HOLWELL: Mr. Rubin is indicating three.
MR. STOKES: And, briefly, Mr. McGowan who will
be very brief just to verify the transcripts of the tapes.
MR. HOLWELL: We may be able to stipulate to
that.
THE COURT: We can stipulate to that. How long
do you think, do you think it will take more than the
mo r ni ng ? • •
MR. STOKES: The direct certainly won't. Mr.
Dixon would be about a half hour at most.
MR. RUBIN: Your Honor, I believe Mr. Dixon
won't be more than 15 minutes, Mr. Zeman no more than
10 minutes.
THE COURT: We will finish tomorrow morning.
MR. HOLWELL: We have not made a final decision,
your Honor, as to whether we may want to read the
transcripts and see if we want to put anything else in.
We have a few exhibits that we advise the Court that
we wanted to put back in. I don't know that we would
go into the afternoon but I would say it is a close
question.
THE COURT: All right. 10:00 o'clock in the
morning, gentlemen.
(Adjourned to January 4, 1976 at 10:00 a.m.)
T' " t T5* * * : - 4
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[59t>] A 516
dwr f
Frances Joy Capers, et al . ,
vs
Long Island Railroad et al..
72 Civ. 3168
i
New York, New York "
January 4, 1976
{Trial resumed.)
MR. STOKES: We will call Mr. Dixon. Mr.
Rubin will conduct our examination, your Honor.
THE COURT: Mr. Dixon, take the stand.
L A W R E N C E W. D I X O N , called
as a witness by the defendants, being first duly
sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RUBIN:
Q Mr. Dixon, by whom are you employed?
A By the Long Island Railroad.
Q In what capacity?
A Assistant superintendent of transportation.
0 Mr. Dixon, when did you first become aware of
the delays of the trains on the night of November 9th
and 10th?
A When I arrived in my office on the morning of
the 10th.
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dwrf 2 Dixon-direct - 5 1 7
q About v.’hat time was that?
A Excuse me?
q About what time was this?
A Approximately 6:00 o'clock.
Q How did you become aware of delays?
A The movement bureau prepares a log for the previous
day pertaining to any activity that is on the railroad
dealing with train delays, the reasons for it, mechanical
i
breakdowns, any kind of accidents, injuries, lateness
of trains, equipment problems, and they prepare a daily
log and I review this log each morning.
Q Did you also receive any writeups from the train
dispatcher?
A On the morning in question I received a writeup
from our chief dispatcher, Mr. Tiegen, pertaining to an
incident that had developed in New York where several
i
trains were reported late due to an error on someone's
part in New York, that the stationmaster had claimed
at the time that he was failed to be notified that the
trains, they were going to take line 3 out of service,
%resulting in the trains being delayed in New York.
Q You were concerned about those delays?
A I was, sir.
Q What did you do as a result of this?
-i
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[600]
dwrf 3 Dixon-direct
A 5 1 8
A Well, after reading the log I called New York
and I spoke to Mr. 0 Brien. He was the supervisor on duty.
I asked him about the delays in New York and he related, and
he related to me that there was a little bit of a contro
versy between the stationraaster, the yardmaster and
C Tower as to what time line 3 was taken out of service
by Amtrak.
I informed Mr. O'Brien that he better prepare
a report from all the individuals concerned, a writeup
of each individual concerned dealing with their side of
the story.
Q Did there come a time that morning when you spoke
to Mr. Gaynor?
A Around 8:00 o'clock that morning I called Mr.
Gaynor at home and asked him would he stop into Jamaica
on his way into New York.
. Later on that morning, Mr. Gaynor arrived in
Jamaica, after he had gone to Neiv York. He had come back to
Jamaica. I spoke to him about the activities at Penn
Station. I wanted him to get into it, make sure we had
Wr:*-teuPs from all individuals concerned so we know
what the story was so it could be evaluated.
0 By the way, Mr. Dixon, during this hearing
we have heard the term Ding Dong School. Could you explain
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what that is?
A It is a meeting held in the superintendent's
office each morning approximately at 8:45 either conducted
by the superintendent himself or myself.
There we review the log for the previous day,
and its activities, various men sit around the room repre
senting various subdepartments of the transportation depart
ment and representatives from other departments of the
railroad.
Q What is the purpose of this meeting?
A Just to go over the previous day's report and
to find out where the responsibilities lay for any
lateness of trains. Was it caused by mechanical error,
mechanical breakdowns, rather? Maybe a track conks out.
Was it the public? Anything dealing where a train might
have some type of a breakdown, a train delayed, accident,
injuries to passengers on or about stations or trains,
freight trains knocking passenger trains out of their
regular schedule, anything dealing with the day before's
operation.
Q So is it a regular practice on the railroad
to increase the efficiency and safety of operations?
A It is, sir.
Q When you called Mr.O'Brien in the morning was
[601]dwrr 4 Dixon-direct /\ 513
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[602]
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A 520
this before that day’s session of Ding Dong School?
A Definitely.
0 .Why did you call him before Ding Dong School?
A Well, I wanted to find out if there was any
additional report as because on the previous day’s log there
were some evening trains listed as arriving late in
New York and I wanted to prepare myself before the
superintendent’s meeting to be able to substantiate the
lateness of these trains.
Q At Ding Dong School is there a representative
from Penn Station at the meeting?
A No, I normally, if there is any questions
dealing with New York I normally take care of the actions
out in New York due to the fact of if we had any late trains
the previous day, Mr. Gaynor would either call me and tell
me what the late trains were, or sometime during the
evening one of his stationmasters or assistants will
leave me. a written report.
Q So, in other words, you have to answer to the
superintendent concerning delays at Penn Station?
A That is right, sir.
Q Is there anyone else you have to answer to?
A I have to answer to the president of the company.
Q He is at these meetings?
Dixon-direct
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[603]
dwr £ 6 A ' 52 1
A
Q
A
Q
Dixon-direct
On various occasions, yes, sir, he is.
The superintendent reports to the president?
That’s right, sir.
You had requested reports from Mr. Gaynor on the
day of the 10th, is that correct?
A That is right, sir.
Q On the morning of the 11th had you received the
reports that you had requested?
A On the morning of the 11th I received a report
from the yardmaster and the C Tower, the operators at C
Tower. I called Mr. Gaynor when he arrived in New York
somewhere roughly between 9:30 and 10:00 o ’clock and asked
him where the reports were from the stationmaster.
Q What did Mr. Gaynor say?
A Mr. Gaynor said that Mr. Harris had failed
to submit the report. I told him, well, I says, "I will
tell you what I want you to do. I want you to meet Mr.
Harris tonight, and I want that report."
Q Incidentally, before you said you received reports
from the yardmaster and C Tower, was the reports from
the yardmaster and the usher that you had received?
A No, there was —
MR. HOLNELL: Objection, your Honor, leading
questions.
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[604]
d w r f 7 D i x o n - d i r e c t A - 522
A There was one from the —
THE COURT: No —
A There was a report from Mr. Lehr and I believe
the other report was from the operators of C Tower.
Q So you told Mr. Gaynor to go that evening and
get a report from Mr. Harris?
A That is correct, sir.
Q Were you being pressured from Ding Dong School
for a report about these —
MR. HOLWELL: Objection to the form of the
question.
i
THE COURT: Yes, sustained.
0 Had you discussed the incident on the morning of
the 11th at Ding Dong School, the incidents of the delays
on the 9th and 10th, the next morning at Ding Dong School?
A On the morning of the 10th I discussed it in
the superintendent’s meeting and I told the superintendent
I was into it and I should by the following morning have
writeups from all concerned, so it could be evaluated.
Q By the following morning you still didn’t have
writeups, did you?
A I spoke to, as I didn’t have the writeups on my
desk, all the writeups on the morning of the 11th, I spoke
to Mr. Valder when he came in and told him that I have
I
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[605]
dwrf 8 Dixon-direct A 523
no answers for the delays outside of the writeup that
we had received from Mr. Teigen, and that Mr. Gaynor
was to get me the other writeups from the men involved
and as yet I have not received them.
0 Did there come a time on the night of the 11th--
12th, when you again spoke to Mr. Gaynor?
A Mr. Gaynor called me at my home approximately about
midnight that night and he related meeting Mr. Harris when he
reported for his assignment in New York, and a discussion he
had with him pertaining to the lateness of trains on the
morning of the 10th, the /oth and 10th, and also that
why he failed to submit a report.
Q Did Mr. Gaynor advise you that he had taken any
action with respect to Mr. Harris?
A Mr. Gaynor advised me.
MR. HOLWELL: I object to the form of the
question. He can ask him what Mr. Gaynor said.
THE COURT: Ask what the conversation was.
Q Did Mr. Gaynor state anything further to you in
the conversation?
A Mr. Gaynor stated to me that he had relieved
Mr. Harris and told him to exercise his seniority.
Q Did you then tell Mr. Gaynor anything?
A I said to him, "Fine. Give me a written report,
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Dixon-direct A 5 2 4
a detailed report in the rooming. I „ant it on my
desk in the morning.
you a detailed report?
A Sometime roughly about 10:30 I met Mr. Gaynor
to exercise seniority?
A Yes, sir, he does.
Q Is that subject to your approval?
A No, sir, it isn't.
Q Could you overturn his decision?
A I can, sir.
Q Did you, in this case?
A No, sir.
Nhat factors did you take into consideration
in approving Mr. Gaynor's decision?
A Mr. Harris' performance, other incidents, other
and he gave me a report on the iinstance of the night before.
Q Does Mr. Gaynor have the authority to tell a *a man
acts of insubordination and due to the fact of the consta±
report of late trains in and out of New York, and other
ports I have received on his activities from Mr. Gaynor.
Had you received a report around the night of
September 16th concerning an incident with Mr. Satter?
I did, sir.
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Q Were Y°u Pleased with Mr. Harris’ actions
on that night?
[607]
dwrf 10 Dixon-direct A 525
MR. HOLWELL: Objection to the form of the
question,•your Honor.
THE COURT: Yes, sustained.
Q Did you form any evaluation as to Mr. Harris’ ac
tions on that night?
A When I arrived in my — when I arrived in the
office at Jamaica approximately 6:00 a.m. there was a
report there left by Mr. Satter dealing with the conversa
tion he had with M r . Harris in New York and also the repo it
of late trains arriving there westbound.
Due to the fact that Mr. Harris was not in the
stationmaster's office at the time but was in another-
location, stapling up programs which I later found out he
was instructed to do during his time of duty, I spoke to
Mr. Satter about it, wanted to know what the hell went on
with it, and he related to me that when he called there Mr.
Harris wasn't in in the stationmaster's office but he was
in PD 4, and when he spoke to him about it he told him
that he was assigned to do this job. And the report
continued on that Mr. Harris accused Mr. Satter of using
racial overtones in his manner of speaking to him and
that was the length of our conversation.
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[608]
dwrf 11 Iixon-direct
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Q What action did you then take concerning the
claim of racial overtones?
A 1%e 11 , I talked to Mr. Rizzacasa m New York
pertaining to it, and later that morning I spoke to Mr.
Allen, he was the supervisor of train movements, and
I asked him to pull the tape on this morning and I
wanted to listen to the conversation between Mr. Satter
and Mr. Harris.
Q Did you listen to that conversation?
A I did, sir.
Q You investigated the claim of racial overtones?
A No, sir, I couldn't find anything other than
Mr. Satter raising his voice from time to time, but this is
his manner of dealing with any individual.
Q Will you describe the system within the railroad
of taping certain telephone extensions?
A Our movement office at Jamaica is a network of
four sections that deal with four various sections of the
railroad. Our dispatchers talk to the various towers
in regards to giving out train orders, issuing K cards,
clearance cards, issuing orders to work trains, trains
crews, and also our movement desk there which controls the
four sections, they handle all incoming calls pertaining
to fatalities, accidents, breakdowns of equipment,
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conversation with individuals on or about the railroad,
and off the railroad. All these lines are taped. It
is 20 lines on the machine. We have a big machine in Jamaura
in the movement bureau that controls these various
conversations which can be monitored and can be listened i
to at another time, just to see how our operation is
going, what is taking place. We want to check on a per
formance of an individual that was supposed to have called
there, reported off sick or something like that, we can
check our tapes and we can also monitor the announcements
made at Penn Station.
Q You take a tape of the PA announcements within
Penn Station?
A Yes, sir.
Q This taping apparatus is kept on a 24-hour basis?
A Yes, sir.
Q It is kept in the ordinary course of business?
A Yes, sir.
Q Every day?
A Yes, sir.
Q Mr. Dixon, are management employees entitled
to a hearing or a trial when told to exercise seniority?
A No, sir.
Q Do you know a Mr. J. J. Dolmat?
SO U TH P KN D I M , t i e r C O U R T RPI’O R U R S . U S C O U R TH O U M
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A Yes, sir, I do.
Q Did there come a time when Mr. Dolmat demoted from
the rank'' of manager?
A He was, sir.
Q Would you explain the situation concerning Mr.
Dolmat?
A Well, Mr. Dolmat was a train dispatcher. He was
demoted on the grounds of poor performance. His lackadaisica
way of handling his train sheets, failing to report
delayed trains, delaying trains unnecessarily, and overall
was just poor performance as far as the train dispatcher
was concerned.
Q Was he given a company trial or hearing?
A No, sir.
Q Do you know a Mr. J. B. Howell?
A Yes, sir.
' Q Was he demoted from management?
A Yes, sir, he was.
0 What were the circumstances surrounding hisdemo-
1
tion?
A Same circumstances surrounding Mr. Dolmat.
Q Was he afforded a company trial or hearing?
A No, sir.
Q Do you know a Mr. D. C. Roberts?
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[611]
dwrf 14 Dixon-direct 5 ^Q
A Y e s , sir.
Q Was Mr. Roberts demoted from management to
represented ranks?
A Same reasons for — yes, sir, he was.
Q What were the circumstances surrounding that?
A
Howell.
Same reasons surrounding Mr. Dolmat, and Mr.
Q Was he afforded a company trial or a hearing?
A No, sir, he was not.
Q Do you know Mr. A. Lyons? *
A Yes, sir.
Q Was Mr. Lyons told to exercise seniority?
A He was, sir.
Q What were the circumstances surrounding Mr.-Lyons?
A Poor performance as stated by the other men,
reference to the same thing.
Q He is a train dispatcher, poor performance?
A Train dispatcher, sir.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
Q Do you know Mr. J. M. Roman?
A I do, sir.
. Q Was Mr. Roman told to exercise seniority?
A He was, sir.
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A - 530
Q What were the circumstances surrounding Mr.
Roman?
A Mr. Roman was assistant trainmaster. Due to
his lackadaisical way, failing to complete assignments,
in general not a cooperative employee as far as a manager
was concerned, he was told to exercise his seniority.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
Q Do you know Mr. L. E. Satter?
A Yes, sir, I do.
Q Was Mr. Satter disciplined within management
ranks?
A He was, sir. Mr. Satter at the time was an assis
tant supervisor of train movements. He made a human error
that resulted in damage to equipment and to company
property to the cost of the company and he was demoted. -
Q Do you know Mr. R. E. Drumm — was he afforded a
company trial or a hearing?
A No, sir, he was not.
Q Do you know Mr. R. E. Drumm?
A Yes, sir.
Q Was Mr.Drumm told to exercise his seniority?
A Yes, sir, he was. ’
Q Will you explain the circumstances surrounding
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that?
A Mr. Drumm was assistant trainmaster. It is
required from all managers from the rank of assistant
trainmaster up to be a qualified man on the railroad.
He must qualify on the book rules and the physical
characteristics of the railroad. Mr. Drumm took it upon
himself that he told us in no uncertain terms that he
was not going to qualify. That he didn’t have much time
left on the railroad, and he didn't want to,qualify.
Q What action was taken?
A He was relieved as assistant trainmaster and he
was demoted back to a yardmaster.
Q Was he afforded a company trial or a hearing?
A No, I don't think so, he was not.
MR. HOLWELL: Your Honor, we will be happy to
stipulate that none of these individuals were given any
kind of trial whatsoever and that the company's standards
are purely subjective in deciding whether or not to
removed somebody from managerial services.
MR. RUBIN: Your Honor I have —
THE COURT: Isn't that one of the issues in the
I have tried to get it narrowed down. What is the issue?
What is the issue involved herewith? I thought at the end
°f the hearing before we adjourned I had suggested that
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[614]
dwrf 17 A- 532
we focus on what the issue involved is, and I have
heard nothing from anybody since then, and so I am under
the impression that what is done with management employees
with respect to any criteria with respect to —
MR. HOLWELL: Your Honor, our contention —
THE COURT: Your contention I will let you state
it, but I think your contention is that he was fired
because he was black or because he brought this lawsuit.
MR. HOLWELL: Both reasons, your Honor, and our
contention is not that he was fired and not given a trial
whereas others have been given trials. To the contrary
our contention is that —
THE COURT: You are conceding that there is no
practice on the railroad to give a hearing or a trial,
with respect to management employees at all.
MR. HOLWELL: With regard to the individuals that
Mr. Rubin is talking about —
THE COURT: Or with any management employee now.
He is a management employee —
MR. HOLWELL: I wouldn't go that far, your
Honor, I think we know of one or two that have been given —
MR. STOKES: Then I think we are entitled to
complete our list.
THE COURT: Then bring it out.
Dixon-direct
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[615]
dwrf 18 D i x o n - d i r e c t
A- 5 3 3
MR. HOLWELL: We are only attempting to save some
time, your Honor/ because we have the list here and we
don't make any claim that these people were fired for any
other reason than the subjective valuation of their
superiors. It is our claim that when you have an organiza
tion that has discriminated in the past that the very exis
tence of these subjective procedures would afford no check
whatsoever on abuse and are discriminatory in themselves.
That is a separate argument.
We are arguing in addition that in this very
instance those objective factors regardless of the
proclivity for that type of an institution to lead to
discrimination, in fact did lead to discrimination because
Mr. Harris was removed from service in retaliation for
his prior actions against the railroad, and in retaliation--
THE COURT: You are conceding that there is no
right for a management employee, which Mr. Harris was
at the time — •
MR. HOLWELL: We are not conceding there is no
right, your Honor. We claim that under the 14th
Amendment there should be such a right and the railroad
is in violation of that by not having the right. Vie
are conceding that with regard to the individuals on this
list that they are not going through, none of them were
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Dixon-direct 5 3 4
given a trial and all
THE COURT:
of them were fired —
Are you conceding that all of those
<ire entitled to a hearing or a trial'5
THE COURT: No. Just the opposite.
THE COURT: I don't get your position. You are
conceding the 14th Amendment gives the right to every
employee to have a hearing and a trial then?
MR. HOLWELLs That is a separate contention th*
we have made before your Honor in briefs and we are making
again in this case.
MR. STOKES: As long as they are making that
contention, your Honor, I think we are entitled to complete
our aspect of the case to protect our argument under
the Rote and Simbalin cases. This is exactly what this
is designed to show, is that no management employee in
the history of the railroad has ever had the expectation
of a right of trial when he is told to exercise his seniority.
THE COURT: That is what I assume was involved in
here.
MR. STOKES: Exactly.
MR. HOLWELL: That is involved, your Honor, only
m the 14th Amendment claim which does not rely or depend
upon a claim of racial discrimination. It is a separate
issue.
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[617]
dwrf 20 D i x o n - d i r e c t /u53S
MR. RUBIN: Your Honor, if the man —
MR. IJOLWELL: And certainly isn't the only issue
in the case, your Honor.
MR. RUBIN: Your Honor, if the man has two
rights to the hearing one based on the 14th Aendment due
process right which they are now conceding that he is not
entitled to and a separate one in which either the 1st
Amendment or Title 7 right against discrimination, well, he
is getting that hearing before this Court and we would con
cede that he is entitled to that hearing and he has gotten
it, but he is not entitled to a due process 14th Amendment.
MR. HOLWELL: Conceptually, your Honor, there
are three claims. One does not depend upon a charge of
racial discrimination. That is based under the 14th .
Amendment.
We say that any management employee including
Mr. Harris, because he works for a state agency, cannot
be removed without a showing of cause. That is a separate
claim and I think you can isolate that one conceptually —
MR. STOKES: That is exactly the one that we
are dealing with at this point, your Honor.
MR. HOLWELL: Could I finish? Our other
argument is that as a point in fact Mr. Harris has been
the subject of intentional retaliation and discrimination
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[618]
dwrf 21 Dixon-direct A- 536
as a result of his suing the railroad.
THE COURT: That I understand, all right.
MR. HOLWELL: The third and separate argument
is that the very subjective institution of discipline
on the railroad, the lack of objective standards in light
of the past discrimination by the railroad in and of itself
is a violation.
THE COURT: Of course that is a problem that we
have a great deal of idfficulty with because we are not
trying the whole lawsuit now. We are just trying Mr.
Harris' individual claim here. If we get to the position
one way or the other either that they were or were not,
then we could, and we could only arrive at that after
we have a full hearing.
MR. HOLWELL: This is a preliminary injunction
hearing, your Honor, and on the basis of the evidence
we believe that we will show a likelihood of success on
that issue or at least a serious question on the issue,
on the basis of the entire record before the Court.
It is very difficult at this point, your Honor,
to in effect recite to you all the evidence that is in
the record. That is what w e intend to do.
THE COURT: I am familiar with all the evidence
in the record. I have sat here and I have heard it.
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Dixon-direct A- 537
MR. HOLWELL: Those are essentially the three
separate claims that we are making.
MR. STOKES: The point is, of course , your
Honor, that the first claim that Mr. Holwell mentioned,
the so-called right of management to have a 14th Amendment
trial, regardless of race or color, this is what this
evidence is designed to show, that under the Supreme Court
decisions in both the Rote and the Simbalin cases, there
is absolutely no expectation or there can be no reasonable
basis for an expectation of any management employee to
a hearing or trial on the property when he is told to
exercise his seniority.
practice of ever giving it, therefore whether we are a state
agency or not we completely are within the doctrine of the
Rote and Simbalin cases and there is no 14th Amendment
member of management or merely because the railroad is
owned by the State of New York.
to show that that claim is complete nonsense.
MR. HOLWELL: Mr.Sollis is more prepared to address
the 14th Amendment claim as he has briefed it.
There being no such reasonable expectation and no
right to a hearing or a trial merely because one is a
We are completely prepared to brief it, but
this is what the evidence is laying the foundation for.
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cfw6r2 t0 i 2 3 Dixon-direct A 538
MR. SOLLIS: I just want to make one clarification.
It is not our claim that just because you are a management
employee that you are entitled to a hearing. Our claim
arises when we say a management employee has a claim of
entitlement to his job, something akin to a property right,
and we claim that Mr. Harris who has put in over 20 years
of experience in the Long Island Railroad has something
akin to tenure, the Supreme Court speaks of a claim of
entitlement. They talk in terms of tenure like a property
right and our claim is that we have put in over 20 years,
you have this claim of entitlement to your job.
It is something akin to property and it can't be
deprived, you cannot be deprived of it by the state without
at least a hearing.
MR. STOKES: This is precisely what this evidence
is designed to show, that no matter how many years the man
has on the job or in a managerial position he has no
reasonable expectation to expect tenure because the history
and practices in the industry has been you are solely there
at sufferance, you have no vested right to the job and we have
always proceeded in that basis; therefor, we come within
the exceptions clearly delineated in Rote and Simbalin.
MR. HOLWELL: Your Honor, you know Our position
and you know the railroad's position. The only statement
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[621]
dwrf 24 Dixon-direct A- 539
that I was attempting to make was simply that we will
stipulate that the people that they have on this list were
not given a hearing.
THE COURT; That is all that you are trying to
do.
MR. STOKES: That is fine. If —
THE COURT: Do you have the exhibit? Mark the
document as an exhibit and it is conceded, is that correct?
MR. hOLWELL: That is a broad sentence when you
say that is conceded.
THE COURT: What is conceded is that all of
these were management employees and they were all terminated
or told to exercise their rights and none of them were
given a formal hearing or trial.
MR. HOLWELL: On formal hearing or a trial, that
is right, your Honor. We object to this as being marked
in evidence as being prepared for litigation.
THE COURT: Then he is going to testify to it.
And that is what he is going to do, all right.
BY MR. RUBIN:
Q By the way, Mr. Dixon, of all the men that
we have mentioned so far are they all white?
A Yes, sir, they are.
0 Do you know a Mr. F. D. Smith?
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A Yes, I do.
[622]
dwrf 25 Dixon-direct A- 540
Q Was he told to exercise his seniority?
A Yes, sir, he was.
Q Can you explain the circumstances surrounding
that?
A Mr. Smith was an assistant trainmaster. In 1972
the railroad was on strike. We had a walkout by all
represented ranks, and we had a lot of perishables in
our freight here on the Island, meats, vegetables, frozen
foods, that had to be switched and placed into various
sidings before they rotted on the sidings. We instructed
our supervisors to go out, our road foremen of engines,
assistant road foremen and our trainmasters and switch
these cars where the various consignees could drive
their trucks up and unload their cars.
Mr. Smith was given one of these assignments.
He — in an act of insubordination due to the fact
that he refused to switch these cars out due to the fact
that they were going across the picket line and Mr. Smith
was relieved of his position of assistant trainmaster and'
told to exercise his seniority.
Q Was he given a company trial or hearing?
A No, sir, he was not.
Q Was he white?
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A He was white.
THE COURT: Give me the length of service or years
of service of each individual. That has been raised with
frespect to Mr. Harris' 20 years of service.
IMR, HOLWELL: Your Honor, we are going to submit i
into evidence personnel files of these people. It is
j
in there. We are not going to ask the Court to read them,
your Honor, but we are going to extract from them.
MR. RUBIN: I can read date of service, and
date demoted, your Honor, if that would aid you in the
record.
THE COURT: That is relevant in view of what Mr.
j
Holwell indicated Mr. Harris has 20 years of service.
This is all I was thinking about. You are going to
give me a lot of personnel files.
MR. HOLWELL: I'm afraid we are, your Honor.
As I say we are going to extract them.
BY MR. RUBIN:
.
Q Mr. Dixon, do you know when Mr. Dolmat was
l
first employed by the railroad?
iA Well, without referring to that list —
!THE COURT: Would that refresh your recollection?
i
You can't concede that data set forth on this is accurate? f
MR. HOLWELL: No, your Honor.
[623] . A C41
dwrf 26 Dixon-direct - *
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& 2 1 Dixon-direct
THE COURT: Have you got anybody to testify
to that, Mr. Rubin? Have you got anybody to testify
that this is extracted from the company records under
the rules of evidence? Have you got somebody that
will come and say this is a summary of those things, then
I will take it.
Q Did you extract this list from the company
records?
A I extracted some of it from the company's records,
days of service, date promoted, position, and the reasons
for more or less regarding to the fact that the men were
returned to their represented ranks from the various jobs.
THE COURT: Is this a variation of the records that
are kept in the regular course of business?
THE WITNESS: Yes, sir.
MR. HOLWELL: Could I have a voir dire on that?
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. HOLWELL:
Q You have a copy of that before you, Mr. Dixon,
is that correct?
A Right.
Q You prepared this last year in preparation
for your testimony at trial at the last hearing, is that
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[625]
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correct?
Dixon-direct 543
A That is correct.
Q You were personally involved in only about the
firing of five or six of these people, is that correct?
A Yes, sir.
Q With regard to the firing of some of the people
on this list you ascertained the reason for their firing,
and placed that on the document on the basis of verbal
conversations with other employees, is that correct?
A That's right, sir. Other managers.
Q In fact, even with regard to those employees
that you were personally involved with in their firing the
reason for their firing such as unsatisfactory performance
or insubordination is not necessarily spelled out in their
correspondence file, is there?
What you will have is the RD 17 which just says
change job from X to Y, right?
A And demoted.
Q In all cases you are saying they say that they
were demoted for unsatisfactory performance or
insubordination?
Some of them do, some just say demoted.
And some of them don't?
That's right.
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Dixon-d i rect A' 54429
Q And the ones that don't, the reason that you gave
on this form was based either on your own personal
involvement or our speaking to other people on the railroad?
A That is correct, sir.
MR. HOLWELL: Your Honor, the document is based
on a lot of hearsay testimony —
THE COURT: That doesn't make any difference
whether it is based on hearsay.
MR. HOLWELL: It was prepared for litigation last
year.
THE COURT: That doesn't make any difference.
MR. HOLWELL: It is not a business record.
THE COURT: Rule 1006.
MR. HOLWELL: Your Honor, we could free at this
point to everything other than the last column which is the
reason for disqualification.
MR. RUBIN: I offer it for everything except the
last column, the reason for.
MR. HOLWELL: Subject to, your Honor, the opportun
ity to make any corrections on the date of service, or the
date demoted that is apparent from the personnel file.
THE COURT: Certainly you have the opportunity
to present anything to the contrary to this but I have
the right to receive it now. All right, no objection
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[627]
dwrf 30 D i x o n - d i r e c t
except for the last column. All right, received in
evidence.
(Defendants' Exhibit L received in
evidence.)
MR. RUBIN: Your Honor, do you want him to read
the date of service at this point?
THE COURT: No, the document is in evidence. There
is no sense in going through it. May I see it?
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[628]
1 dwmch Dixon-direct A 546
Q Mr. Dixon, do you know a Mr. J . A . Cossman?
A I do, sir.
Q Was he told to exercise his seniority?
A He was, sir.
Q What were the circumstances surrounding that?
A Same. He was the assistant road foreman of
engines and relates to the same thing as Mr. Smith.
The giving of an order and refusal to obey an order,
an act of insubordination during the strike.
Q Did you ascertain this information from your
files or from your subordinates?
A I did, sir.
Q Mr. R. G. L ’Hommedieu, do you know him?
A Yes, sir.
Q Was he told to exercise his seniority?
A Yes, sir, he was.
Q Would you explain the circumstances, sir,
surrounding that?
A Mr. L 'Hommedieu was assistant road foreman of
engines, and he refused to obey an order, an act of
insubordination during the strike of 1972.
O Was he afforded a company trial or hearing?
A No, sir, he was not.
Q What is his race?
S O U TH ER N DISTRICT COURT REPORTERS. U S . COURTHOUSE
F O LE Y SOUARL N E W YORK. N Y . - 791*1020
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[629]
2 dwrach Dixon-direct A - 5 4 7
A
Q
hearing?
A
Q
A
Q
A
Q
A
Q
A
an act of
resulting
Q
from your
A
Q
A
Q
A
Q
A
Q
White.
Was Mr. Cossman afforded a company trial or
No, sir.
What is his race?
White.
Do you know Mr. R. L. Schluter?
I do, sir.
Was he told to exercise his seniority?
Yes, sir, he was.
What were the circumstances in that situation?
He was assistant road foreman of engines;
insubordination, refused to obey an order,
in reduced in rank and returned to service.
Did you ascertain this from your files or
subordinates?
Yes, sir, I did.
Was he afforded a company trial or hearing?
No, sir, he was not.
What is his race?
White.
Do you know Mr. L. Matarazzo?
I do, sir.
Was he told to exercise his seniority?
SOU TH ERN D ISTRIC T COURT REPORTERS, U.S, COURTHOUSE
___ FOi.E Y SQUARE N E W YORK N Y. - ? 9 M 0 : 0 ....................
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[630]
3 dwmch Dixon-direct A- 548
A
Q
case?
He was, sir.
Would you explain the circumstances in that
A Mr. Matarazzo was a full road foreman of
engines, and during the strike of 1972 he was given an
order which he refused to obey. It was an act of
insubordination.
Q Did you ascertain this from either your files
or your subordinates?
A Yes, sir.
Q Vlas he afforded a company trial or hearing?
A No, sir.
Q Vlhat is his race?
A White.
Q Do you know Mr. C. R. Dunne?
A Yes, sir.
Q Was he told to exercise his seniority?
A He was, sir.
Q What were the circumstances in that case?
A Same thing. Relates to the other road
foreman. During the strike of '72 he was given an order
which he refused to obey, an act of insubordination.
Q Did you ascertain this from either your files
or your subordinates?
SOU TH ERN DISTRIC T COURT REPORTERS. U.S. COURTHOUSE
FOLEY SQUARE. N E W YORK. N Y . - 791-1020
[631]
4 dwmch D i x o n - d i r e c t A 549
A Yes, sir, I did.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
0 What is His race?
A White.
Q Do you know Mr. S. C. McCloud?
A Yes, sir.
Q Was he demoted within management?
A He was.
Q Could you explain the circumstances of that?
A Poor performance due to the fact that Mr.
McCloud at the time was in charge of the department of
the road foremen’s department, and he was well aware
of the situation and the feelings of the men and he didn't
let it be known to the other managers exactly what the
feelings were, resulting in when the other men were
reduced, sent back to the ranks, he was reduced grade and
cut in pay and given a lower job in management.
Q In other words, it was determined that he
knew that the other people would not obey the orders ahead
of time and didn't let management know?
A Yes, sir, he did.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
SO U TH ER N D IS T R IC T C O U R T REPORTERS. U.S. COU RTH O USE
F OLEY SQUARE. N E W YORK. N Y . - 791-10:0
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[ 6 3 2 ]
5 dwmch5 dwmch
Q
Dixon-direct /\. 550
Do you know what Mr. McCloud's background is.
his race?
A White.
Q Did you determine this from your files or
from your subordinates?
A Yes, sir, I did.
Q Did you have personal knowledge of this?
A I was there when it was all going on, yes,
sxr.
Q Mr. R. R. Thomas; do you know Mr. R. R.
Thomas?
A Mr. R. R. Thomas was an assistant road foreman
of engines.
Q Was he told to exercise his seniority?
A He was, sir.
Q What were the circumstances in that case?
A Same as the other individual; strike of '72,
refusal to obey an order.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
Q Did you ascertain this from your files or
from your subordinates?
A Yes, sir, I did.
0 What is Mr. Thomas' race?
SOUTHERN DISTRICT COURT REPORTERS. U.S. COURTHOUSE
FOIEY SQUARE. NEW YORK. N Y - ?9!-!0:0
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[6333G dwinch Dixon-direct A - 551
A White.
Q Do you know a Mr. M. J. Sichinolfi?
A Yes, sir, I do.
Q Was he told to exercise his seniority?
A lie was, sir.
Q What were the circumstances in that case?
A He was a full road foreman of engines. During
the strike of '72 he refused to obey an order. It was an
act of insubordination.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
Q You ascertained this from either your files
or from your subordinates?
A Yes, sir, I did.
Q What is his race?
A White.
Q Do you know Mr. J. E. Kelly?
A Yes, sir, I do.
Q Was he told to exercise his seniority?
A Yes, he was, sir.
Q What were the circumstances in that case?
A Mr. Kelly was assistant air brake examiner
and assistant road foreman, and there was an act of
insubordination during the strike of '12.
SOU TH ER N DISTRICT COURT REPORTERS. U S. COURTHOUSE
FOLF.Y SQUARE. N E W YORK. N Y . - 791-1020 ^ _________
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[634]
7 dwinch
Q Did you determine this from your files or
Dixon-direct /\- 5l)2
from your subordinates?
A Yes, sir, I did.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
0 What is Mr. Kelly's race?
A White.
Q Do you know a Mr. F. J. Mott?
A Yes, sir, I do.
Q Was Mr. Mott told to exercise his seniority?
A Yes, sir, he was.
0 W7hat were the circumstances in that case?
A Poor performance.
Q What was his position at the time?
A Assistant trainmaster.
Q What was the nature of his poor performance?
A Mr. Mott worked directly under me at the
time as I was a passenger trainmaster, and he worked for
me as an assistant out in Babylon, and he was in grade
about nine months. It's lackadaisical attitude, refusing
to complete assignments.
I wrote an efficiency report up on him,
resulting in his being sent back to the ranks -- rather,
being reduced in a managerial position, and he went back
SOU TH ERN DISTRICT COURT REPORTERS. U.S. COURTHOUSE
FOLEY SQUARE. N EW YORK. N Y. - 791-1020
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[635]
0 dwmch Dixon-d irect A f 5 5 3
to the craft he came from.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
Q What was his race?
A White.
Q Do you know Mr. E. D. Lawrence?
A Yes, sir, I do.
Q Was Mr. Lawrence told to exercise his
seniority?
A He was, sir.
Q What were the circumstances in that case?
A Poor performance. He was a chief trial
officer, an assistant trainmaster at the time, and due
to his lackadaisical way of handling various company
trials results in cost to the company of the loss of
time.
Q Was Mr. Lawrence afforded a company trial or
a hearing?
A No, sir, he was not.
Q What is his race? -
A White.
Q Do you know a Miss L. F. Duryea?
A Yes, sir, I do.
Q Was she told to exercise her seniority?
SOUTHERN DISTRIC T COURT REPORTERS, U.S, CO URTHOUSE
p o t EY SQUARE N E W YORK. N Y . - 791-1020
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[636]
9 dwmch Dixon-direct« A 554.
A She was.
Q What were the circumstances in that case?
A She was an assistant wage examiner. It
was her job to process claims by the various labor crafts,
trainmen, engineers and other represented employees of the
transportation department, and failing to do so resulted
in a loss of money to the company, and she was sent back
to where she came from for poor performance.
Q Was she afforded a company trial or hearing?
A No, sir, she was not.
Q What was her race?
A
0
White.
Do you know Mr. R. R. Landsberg?
A I do, sir.
Q Was he told to exercise his seniority?
A
o
He was, sir.
What were the circumstances in that case?
A Mr. Landsberg was an assistant trainmaster.
Due to his lackadaisical attitude, continuous reporting
sick, not completing his assignments as he was told to
do, he was told to exercise his seniority.
Q Was he afforded a company trial or hearing?
A No, sir, he was not.
Q What is his race?
SOUTHERN DISTRICT COURT REPORTERS. US. COURTHOUSE
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[643]
16 dwmch . Dixon-cross A- 555
A T}'se writeup I received from Mr. Tiegen is
just a broad topic on the incident in New York. It was --
I picked the information up to the fact of what Mr. Harris
had said to Mr. Tiegen, but in the report —
Q And in fact niether Mr. Tiegen nor his
statement said that Mr• Harris claimed evervbodv was
lying, did it?
4
A That's right, sir.
Q Later that morning, after having called
Mr. Gaynor at home at 7:00 or 8:00 o'clock, you met with
Mr. Gaynor?
A That's right, sir.
Q At that point he told you, and you asked him
to get writeups from the yardmaster, the stationmaster,
C-Tower and A-Tower?
A Yes, I repeated my orders I gave to Mr. O'Brien
that morning.
Q You didn't think you could make a fair
decision as to who was at fault for the delays until you had
all these facts?
A That is right, sir.
Q Now, the writeups you asked Mr. Gaynor for
that morning were the writeups from the men involved?
A That's right, sir.
SO U TH ER N D IS T RICT COU RT REPORTERS. U.S, COURTHOUSE
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[644]
17 dvnch
Q You didn't ask Mr. Gaynor to write a report,
did you?
^ No, I wanted it from the men involved.
Q The only time you asked Mr. Gaynor for the
report was at midnight on November 11 after he had called
you at home and told you that he had removed Harris?
17 dwnch Dixon-cross A 556
A That is correct, sir.
Q You, during this period of time while you
called him up the next day and said you wanted the reports
from the men involved, you weren't pressuring him to write
a report, were you?
A I wanted a report from the individuals
involved.
Q But not a report from Mr. Gaynor?
A No, from the individuals involved.
Q You called Mr. Gaynor at 7:00 or 8:00 in
the morning at home.
It's not your normal procedure, whenever
there is the delay of a couple of trains, to call Mr.
Gaynor at home, is it?
A No, sir.
0 Thank you.
Now, you spoke to Mr. Gaynor the next day
on November 11; is that correct?
SO U TH ER N D IS T RICT COURT REPORTERS. U.S. COURTHOUSE
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l*864c?wmch
A
Q
reports?
A
0
Harris’?
A
Q
A
Yes, sir.
And you asked Mr. Gaynor if he had the
Yes, sir.
He said he had all the reports except Mr.
Right, sir.
Hd sent you those writeups that day?
I had one from C-Tower and one from the
Dixon-cross / V 5 5 7
yardmaster.
Q Although Mr. Gaynor told you that he had
all the reports, he in fact didn’t send you a report from
A-Tower, did he?
A No, sir, I never did see the report from
A-Tower.
Q And, in fact, you never did receive a report
from C-Tower, did you?
A I'm pretty sure there is a writeup from the
operator, yes, sir.
Q But if you received that report you would
have given it to your attorneys; right?
A There were two reports I received. I'm
pretty sure one was from Lehr and one was from C-Tower.
n Any reports you received you gave to your
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[647]
2 0 d w i n c h Dixon-cross /\ - 558
but something like that.
Q But your recollection is that it was only one
or two lines and it didn't go into the story of the reasons
for the delay; is that right?
A Right, sir.
Q And the only thing that you recalled it stating
was the time that the line went out?
A No, there was some other things in regards
trains, and whatever was reported by Mr. Harris on the log
that day. -
Q
I can't tell you what it said; just roughly.
Basically, it was too short, and that's why
you wanted a —
A Yes, sir.
Q -- full statement from Mr. Harris?
A That is right.
Q While Mr. Harris' report in the log was too
short, the statements that you received from C-Tower and
Mr. Lehr on November 11, they were long enough; right?
A The reports that I read relate to what
the incident was.
Q Were they long enough?
A Gave me the facts, yes, sir.
0 They were long enough?
SOUTHERN DISTRICT COURT REPORTERS. U S COURTHOUSE
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[648]
21 dwmch A 559
Dixon-cross
A Yes .
Q I don't have a copy of C-Tower report. I
probably have a copy of Mr. Lehr’s report.
I ’d like to show it to you. Is this a
copy that you recall receiving from Mr. Lehr?
A Yes.
Q I would also like to show you Mr. Harris’
report in the log book that Mr. O'Brien read to you on the
morning of the 10th. It's about the same length as Mr.
Lehr’s report, isn't it?
A Yes, sir.
Q It's about as complete as Mr. Lehr's report,
too, isn’t it?
A It's similar, in the vicinity, yes, sir.
Q I suppose Mr. Harris’ report to you in the
log was longer than the report you never received from
A-Tower.
A I never did see the report from A-Tower.
There was a report from —
Q So you don't know how long that report was?
A No, sir, I don’t.
Q You received another report from Mr. Gaynor
on the morning of November 12?
A I did, sir.
S O U T H E R N D IS T R IC T C O U R T REPORTERS. U.S. COU RTH O USE
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[657]30 dwmch Dixon-cross
A A* 560All I can go on is what's in the report.
Q And that's not in the report, is it?
A Mo, it's in the writeup from Mr. Tiegen
itself.
0 You didn't know that C-Tower in fact never
told Harris that line 3 would be closing after train 400
departed, did you, because that wasn't in the report?
A No, sir.
Q You didn't know that C-Tower said that the
only communication he heard to Mr. Harris was made by
Mr. Lehr over the squawk box at about 12:18? That's not
in the report, is it?
A I can only go by what's presented to me here
and the reports that I had.
Q You didn't know that,then?
A No, sir.
Q You didn't know that Mr. Lehr said he never
made any communications to Mr. Harris at that time because
it's not in the report?
A It's news to me, sir.
Q You didn't know, in any event, that C-Tower
said they never heard Mr. Harris respond to the
that M r . Lehr says he never made?
A I have no knowledge of it.
•
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Q You didn't know that Hr. Lehr's practice
was to check with C-Tower for foulings whenever he has
ten cars on track 16 or eight cars on track 17 because
they have to get all the way west to clear? You didn't
know that was Mr. Lehr's practice, did you?
A Yes, sir, 1 do.
MR. STOKES: I object to the question.
It's predicated on facts that are not of record.
THE COURT: Sustained.
Q Do you know what Mr. Lehr's practice is with
regard to checking on foulings on tracks 16 and 17?
Does --
A It's the general practice of yardmasters
to check to see if the circuits are cleared on the east
end. Normally, C-Tower would notify them that the crew
has failed to stop short or the equipment has to be
pulled up.
Q And C-Tower would normally do that when the
train pulls in the station; right?
A Either to the yardmaster or to the station-
master.
Q At the time it comes into the station or
closely thereafter?
A Yes, sir.
[658]
31 dwmch Dixon-cross A 561
SOU TH ER N D ISTRIC T CO U RT REPORTERS. U S. COU RTH O USE
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if63wmch Dixon-cross A 562
Q At about midnight on November 11 Mr. Gaynor
called you; right?
A That’s right, sir.
Q You were asleep at the time?
A I was, sir.
Q Mr. Gaynor told you that he had removed Mr.
Harris for insubordination for not filing a report; right?
A He told him to exercise his seniority.
Q And he told you the reason that he directed
Mr. Harris to exercise his seniority was for insubordination
for not filing a report; right?
A That is correct.
Q And the reason that you approved -- let me
back up a second.
At that point you approved the decision?
A Not necessarily. I used the word "fine,"
more or less to his actions he's taken and to give me a
complete writeup in the morning so I could evaluate it.
Q You are saying that you didn’t approve it at
that time when he called you?
A I said "fine" to the man over the phone,
meaning more or less I approve of his action, but at the
same time I want a written report in the morning giving
me all the facts.
s o u m i R N d i s t r i c t c o n n r i i 'o r u r s . m> c o u r i h o i m
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[661]34 dwmch Dixon-cross A 5S3
0 Then the next morning you approved it a
second time?
A That is right.
After I evaluated the writeup from Mr. Gaynor.
Q At that time had you come to a conclusion
as to whether or not Mr. Harris was responsible for the
delays that night?
A The question here isn't --
Q My question, Mr. Dixon, is at that time had
you come to a conclusion as to whether or not Mr. Harris
was responsible for the' delays that night?
A No, sir.
Q The reason that you approved Mr. Gaynor's
decision at midnight on November 11 was that, in your
own words, When a man fails to write a report, that’s an
act of insubordination and I won't tolerate it."
A That is correct, sir.
Q When you spoke to Mr. Gaynor at midnight he
told you, did he not, that Harris had said that he had had
some personal problems that day?
A Tf I remember correctly the conversation,
he did say personal problems. It wasn't until the next
day that it turned out to be some type of medical or dental
problem he had.
S O U T H E R N c : > r < : c : c m s ? r h o k u r s u s c o u r t h o u s e
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[663]
3 6 dvmch Dixon-cross
^ ' 5 6 4
as to the nature of Mr. Harris' dental problems?
A I took it for granted he did when he stated
that Harris had told him about his — I think it was a
dental or medical problem he had, yes.
Q You never inquired of Mr. Harris —
A No, I did not; no, sir.
Q You will also admit, won't you, Mr. Dixon,
that Mr. Harris may have had sufficient reason for not
having the written report in his hand that day, but that
you don’t really know what his problems were and whether
or not they were sufficient?
A I do.
Q Is that correct?
A Yes, sir.
Q You basically felt that he might have had
a reasonable excuse for not preparing it during the
day, but that it had been 48 hours and you thought you
should have the report?
A Yes.
0 24 hours is one thing, but 48 hours is
another?
A Right, sir.
Q Mr. Harris called Mr. Rizzacasa on the morning
of November 11, did he not?
_________ SOUTHERN DISTRICT COURT REPORTERS. U S COURTHOUSE
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[669]
4 2 dwrnch Dixon-cross A - 565
A Yes, sir.
Q Mr. Landsberg was an assistant trainmaster
that at one time worked on the shift with Mr. Harris;
right?
A
*
Yes, sir, he was.
Q Mr. Landsberg never made any complaints
to you, or you know of no complaints by Mr. Landsberg
about Mr. Harris' performance on the job, do you?
A They were reported to me by Mr. Gaynor.
Q I believe that Mr. Landsberg was encoun-
tering difficulties at Penn Station; is that right? He
was laying off sick, not covering his assignment,
calling off short of time, and looking for excuses; is
that correct?
A That is correct, sir.
Q At this point you didn't remove him from
managerial service; you moved him out of New York to
Jamaica Station where he worked as an assistant train
master?
A I moved him out to the east end of the
Island, yes, sir.
Q Where he worked as an assistant trainmaster?
A That's right, sir.
Q You did that hoping that, in light of his
SOUTHERN DISTRICT COURT REPORTERS. U.S. COURTHOUSE
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long service, he would be able to do a better job out
there?
A That is correct, sir..
Q How long was Mr. Landsberg's service, do you
know?
A I believe Mr. Landsberg has about twelve
years of service, sir.
Q Do you know how long Mr. Harris' service has
been?
A About twenty-five years.
Q You never moved Mr. Harris out of New York,
I suppose, to see if he could, in light of his long service
with the railroad, be able to do a better job out there?
A I believe Mr. Harris was offered the
opportunity when other positions of assistant stationmaster
opened up to move out of New York and declined it,
Q When you moved Mr. Landsberg out, it
wasn't because Mr. Landsberg wanted to move out, it was
because he was having problems and you, as a disciplinary
action, moved him out there to see if he could do a better
job; right?
A That is correct, sir.
Q You never did that with Mr. Harris?
A No, sir.
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A 5 6 7
Q Going back to the list, why don't we try to
take it in chunks, speed things along.
The first four on the list are all train
dispatchers by the names of Dolmat, Howell, Roberts,
Lyons; that's it.
The reasons for removing those individuals
from service was their unsatisfactory performance, which
included a pattern of failure to report delays, poor
performance all around, the misrouting of trains, the delay
of trains unnecessarily, and the failure to make various
reports on late trains; is that correct?
A That's right, sir.
Q You did not make the decision to remove them
from service, did you?
A No, sir.
Q You don't know the circumstances under which
they were actually removed from service, as far as whether
or not they met with their superior and what was said to
whom, et cetera?
A No, general conversation; no, sir.
Q You weren't at any of those meetings, if they
did exist?
A No, sir.
Q You don't know whether or not any meetings
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A 568
did exist with those people?
A No doubt there were meetings with their
immediate superior, yes, sir. But I don't know what the
conversations were.
Q Do you know for a fact that there were
meetings, or are you just basing this on your general
experience?
A General experience.
Q They were basically handled by the superinten
dent of train movement, these four train dispatchers?
A That is right, sir.
Q The next one on the list is Mr. Roman who was
an assistant trainmaster. He was fired for unsatisfactory
performance as an assistant trainmaster, which included
his failure to perform various assignments and his failure
to make various writeups he was supposed to submit, and
also failure to respond to calls from the movement
bureau; also that his hours were being cut short and that
he was going home without telling anybody.
-‘m
A That’s right, sir.
Q Other than those generalities, though, you
don't have any firm recollection? You weren't personally
involved in his removal?
A Mr. Roman, I was personally involved.
S O U T H E R N D IS T RICT COU RT REPORTERS. U S . COU RTH O USE
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Anything else that he did other than those
Dixon-cross A‘569
Q
things that I have just mentioned?
A Just a poor performance in general.
q ' Now, Mr. Satter was the assistant superin-
tendent of train movement back in *72; is that correct?
A That's right, sir.
Q He was responsible for a derailment of a
train?
A That's right, sir.
Q A switch was thrown under a moving train?
A That is right, sir.
Q That resulted in personal injuries,
substantial damage to equipment, and also closed down
Brooklyn for a couple of days?
A That's right, sir.
Q Now, Mr. Satter wasn't told to exercise
seniority?
A He was reduced.
Q He went to a lesser management position?
A That's right, sir.
Q Mr. Drurrun was removed, you say, for failure
to qualify on the book of rules and physical character
istics?
A That is correct, sir.
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Q You expect every manager of the assistant
trainmaster level or above to be able to take over the
running of a train, and therefore to be qualified on the
book of rules and physical characteristics?
A That is correct, sir.
Q Mr. Drumm refused simply to take the exams?
A That is right.
Q If he had taken the physical characteristic
exams and filaed it, would he have been removed from
service for failing the exam?
A He would have been removed more of less
due to the fact that he wouldn't be able to work in that
capacity until he was able to pass the book on the physical
characteristics.
Q He would have been removed from service as
assistant trainmaster until he passed it?
A That's right, sir.
Q Now, has it always been the policy to have
your assistant trainmasters qualify by taking the physical
characteristics exam?
A Yes, sir.
Q I see that Mr. Drumm was removed on
December 31, 1974, which, if you will recall, was shortly
after our first appearance before Judge Gagliardi when
SOU TH ERN D ISTRIC T COURT REPORTERS. U.S. COURTHOUSE
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require him to take an examination?
A That is right, sir.
Q Because of his length of service on the
railroad?
A No, sir, because of where; he was restricted
to work within the area
Q Which was?
A Jamaica area and the New York area.
Q Well, if you had to work as a trainmaster in
Jamiaca and New York, isn't it possible that you might have
to go down to the tracks and remove the train?
A He was also a block operator.
Q Isn't it possible that he would have to go
down on the tracks and remove the train?
A Yes, sir.
Q Yet you didn't require him to pass this
physical characteristics exam until December of '74?
A Yes, sir.
Q The next ten individuals on this exhibit
were all fired for reasons stemming out of a fifty-some
odd day strike at the railroad; is that correct?
A That is correct, sir.
Q All of these eleven individuals, except
Mr. McCloud, were fired for insubordination?
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A That is correct, sir.
Q Because they refused a direct order to
go out and move some trains?
A That is correct.
Q Essentially, they refused to break the
strike?
A That is right.
Q Mr. McCloud, on the other hand, while not
refusing to break the strike, knew that his men were going
to refuse to break the strike and didn't report it to his
superiors, and in effect, perhaps, was sympathizing with
the strikers; is that correct?
A That is right, sir.
Q I mean, that's the reason he was removed?
A He was reduced in grade.
Q He wasn't removed from managerial service;
he was reduced to a different job in managerial service?
A That's right, sir.
Q Mr. Mott was removed as a result of an
efficiency report that you wrote?
A That is right, sir.
Q Prior to becoming an assistant trainmaster
in May of 1969, he had held a management position in
another department?
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A No, sir.
G Mr. Lawrence, I believe you said, was chief
trial investigating officer, and that he was negligent
in the preparation of cases, and management lost a lot of
trials as a result of that, and that this was the reason
for his being demoted; is that correct?
A That is correct, sir.
Q Didn't Mr. Lawrence also try to organize the
assistant trainmasters into a union?
A Not that I know of, sir.
Q Now, Miss Duryea, who is last on our list,
worked for the management of manpower as a wage examiner;
is that correct?
A That's right, sir.
Q She failed to process various claims that
resulted in lost time and money and was fired by Mr.
Schaffer; is that correct?
A That is correct.
Q You have no personal knowledge of the facts
surrounding her being demoted, do you?
A No, I do not.
Q Now, in deciding whether or not to remove
someone from managerial service, the railroad doesn't
have any objective standard which it applies; it is all
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the subjective evaluation of the management employees.
Is that correct?
A That's correct.
MR. STOKES: Objection.
0 In deciding what discipline —
THE COURT: Overruled.
Q — to give to someone —
MR. HO LITE LL: Pardon, your Honor.
THE COURT: He made an objection. I ruled on
it. That is the usual procedure.
Q In deciding what discipline to give someone,
you don't take into account the fact that an employee is
a represented employee as opposed to a managerial employee,
do you? That factor, in and of itself, does not figure
into your determination as to what discipline to give
\somebody?
A Represented employee has a hearing.
Q I understand that he has a hearing. I'm not
talking about what procedures you give him, but in the
end what you finally decide to do to him. The fact
that he is a union employee as opposed to a managerial
employee doesn't mean that he is going to get treated more
.
harshly or more leniently, does it?
A He can get treated more harshly than a manageri
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Dixon-cross
employee, sir.
Q I understand that he can, but what I'm saying
is that, by virtue of the fact that someone is a union
employee as opposed to a managerial employee, that factor
will not lead you to give him a different discipline;
■the punishment fits the crime, right?
A That's right, sir.
Q Now, when you tell a management employee
to exercise his seniority, I suppose that that means that
the employee is going to.lose his chances for promotion
to future management positions; is that correct?
A Possibly, yes, sir.
Q
Harris?
You don't yourself personally work with Mr.
A No, sir.
Q And you have no personal knowledge of Mr.
Harris* performance except for certain written reports
that you have gotten from Mr. Gaynor, and I believe maybe
one from Mr. Rizzacasa; is that correct?
A That is correct, sir.
Q You have spoken to Mr. Gaynor about other
assistant stationmasters failing to submit reports, haven't
you?
A Yes, sir.
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Mr. Harris exercised poor judgment that evening.
Did you come to the conclusion that anybody
else had exercised poor judgment that evening?
A No, sir. I believe the yardmaster in question
also used poor judgment that night.
Q Because he was, the one that originally
routed the two trains to come in behind each other?
A The yardmaster has nothing to do with
routing the trains.
y Who does that, A-Tower?
A /i-lower.
Q Doesn't the yardmaster and A-Tower get
together to decide what tracks a train is going to come
in on and whether or not to bring m m in on this line or
that line?
A There is a possibility whatever he is going
to turn the equipment for, he could talk to A-Tower.
He's going to use equipment of 803 for so-and-so,
or train 1605 for something like that is right.
Q A-Tower doesn't just decide to bring in a
line. He confers with the yardmaster; is that correct?
A And the stationmaster, sir.
Q A-Tower will confer with the stationmaster?
A That's riaht.
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Q In other words, the track change or closing
up of lines?
A That's right.
0 That's part of A-Tower's job; right?
A That's right.
Q So, on the evening of September 16, in
addition to Mr. Harris, the yardmaster and A-Tower also
knew that these two trains were going to come in against
traffic, one behind the other, on line 3; right?
Is that correct?
A I don't follow you on the question, sir.
Q Well, as I understand it, there was a line
going out, line 2.
A Right.
Q Okay. And that's the income line.
A Line 2 is the incoming line to New York.
Q So, what happened was that there are two
trains, train 803 and train 1605.
A Right.
Q After consulting with the stationmaster and
the yardmaster, they were directed to come against
traffic, one behind the other, in line 3, which is
normally the outgoing line.
A That is correct, sir.
S O U T H E R N m U K i C T C O U R T R I P O R T I R V U S CO UK THO US I -
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A That is correct.
Q His principal duties are to supervise the running
of the entire station to manipulate crews and equipment,
is that correct?
Yes .
That's right, sir.
Has his title recently been changed to assistant
to terminal trainmaster?
A It is in the process of being changed right now,
Q And Mr. O'Brien’s principal duties while on
the job is to handle the public, take messages to the
crew, assist Mr. Rizzacasa?
A Yes, sir.
Q The assistant stationmaster on duty during this
first trick is a Mr. Scott, is that correct?
: ait Yes
ii ; ■
1
MR.
T during the f
1
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And
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dwr f 4 Dixon-cross A 5 7 3
keep identity of the trains that come in and out of
Penn Station during that time, is that correct?
A In general, yes.
In addition to that I assume he assists Mr.
O ’Brien who is assisting Mr. Rizzacasa?
A That is correct, sir.
Q Later on in the morning the stationmaster comes
in about 10:00 or 10:30?
A Roughly, yes, sir.
Q He works through the afternoon rush hours?
A That is correct.
Q The stationmaster, when he comes in, he sorts
the mail, he relieves the assistant stationmaster for
lunch, he coordinates Allied Cleaning. If there is a
problem in the morninq he will assist the terminal train
master in handling of crews and equipment. For example
he may go down on the platform and so forth.
A Yes, sir.
Q He generally has those responsibilities?
A Yes.
Q A road man then comes in at about the same
time, doesn't he?
A Yes, sir.
Around noontime.
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dwrf 8 Dixon-cross
f\- 5*0
duty.
Q Now the assistant stationmaster that is on
the job on the morning shift, Mr. Scott, he is relieved
at 3:00 o ’clock in the afternoon by assistant stationmaster
Albertus, right?
A That's right, sir.
Q And the assistant stationmaster Albertus'
prime function similar to Mr. Scott's is to keep the
identity of trains?
A Yes, sir.
Q The assistant trainmaster, Mr. Bloomfield, he
works down on the platform to assist the conductors'
to close the doors, to assist any train repairs, he works
on track 18 and 19, right?
A He is normally through the station, at a given
time during the commission hour he may be assigned to
a specific platform. But after commission hour he
covers the station in general as far as Long Island side
is concerned.
Q The same is true with assistant trainmaster
Battistini is generally throughout the station but during
heavy periods he will be down on track 13 or 14 doing
the same job as Mr. Bloomfield?
A That is correct, sir.
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dwrf 21 Dixon-redirect
fv 5Sl
THE COURT: You should rephrase it.
■MR. RUBIN: Excuse me, your Honor?
THE COURT: Rephrase the question. I will permit
you to develop what you are trying to develop but rephrase
the question.
BY MR. RUBIN:
Q Did you have any other reports from C Tower
on the morning of the 10th other than this report?
A I was pretty sure I had a report, definitely
sure that I had a report from Mr. Gaynor had supplied me withI
a report sometime after the 10th on the operators at C Tower.
Q You stated during your cross examination that
there were other instances in which stationmaster failed
!
to submit reports, is that correct?
A That is correct, sir.
Q What reports were these?
A Well, when I questioned Mr. Gaynor on various
activities that went on around Penn Station, then I would
ask to submit a writeup.
0 In other words, you were not satisfied with the
| report in the log, is that correct?
A That is correct.
Q Has any other assistant stationmaster ever failed
to submit a separate written writeup when ordered?
S O U T I I t R N DI V T U C U C O t - R I R L T O R U R S . U S C O U R I H O I M
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736]
dwrf 40 Dixon- ^ - . 5 8 2
Mr- Zeman.
A N, called as a
sworn, testified as
BY MR. STOKES:
Q Mr. Zeman, by whom are you employed and in
what capacity?
A I'm employed by the Long Island Railroad, and
I am manager of employee services.
Q How long have you been employed by the Long
Island Railroad?
A Since February of- *64.
Q That has all been in the personnel department?
A Yes, that is correct.
Q Have you any responsibility for cases before
the Division of Human Rights, the New York State Division
of Human Rights?
A Yes, I do.
Q Do you have any responsibility for the EEOC
reports filed by the Long Island Railroad?
Yes, I do.
soiniUKN court r m-ortirs. u.s c ou rt h oi m-
- > -«{ NT W YORK NY -* 79I-UU0
Dixon.
(Witness excused.)
MR. STOKES: We call
E D W A R D J. Z E M
witness, being first duly
follows:
DIRECT EXAMINATION
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dwrf 41 Zeman-direct A - 5 8 3
Q Now, during the past year did you have any
occasion to check on the validity of the EEOC reports
filed by the Long Island Railroad?
A Yes, I had.
Q Will you explain how it came about?
A Well, coincidental to a complaint filed with
the State Division of Human Rights I had to produce some
records concerning minority participation in certain
crafts on the railroad.
Upon reviewing the data that we had on file
I noticed that it was quite erroneous, and a number of
blacks were omitted. Therefore, I had to institute an
audit eventually to check on the record itself.
Q When was this audit held?
A To the best of my recollection it would be
sometime in September that we received the material.
I would say September of '76.
Q When did you get the results of it?
A Sometime in November, before Thanksgiving.
Q What did this audit of the EEOC report show?
A Well, it showed a gross misrepresentation of
the total number of blacks in our work force as compared
to the last EEO 1 report placed on file with the Federal
Government.
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Q In other words, the number or the black partici-
pation in Long Island employment was being understated?
A Yes, it was.
Q For 1976 what was the amount of the understatement'
A I would say about 200 people.
Q As a result of this audit did you make any further
checks to see about reports filed on prior years?
A Yes, we tried to research back with regard to
the count itself, and did research some individuals on
a random basis.
Q What did you find on the basis of your random
sample and research? -
A Well, it showed that in prior years the correct
count of blacks that I know that are presently employed
on the railroad were not counted in those reports.
Q Approximately how many, names would this be?
A At least 130.
Q This would go back how far?
A Early ’50s.
Q So, in other words, from your preliminary studies
you can state with reasonable certainty that all of the
EEOC reports filed by the Long Island since 1966 when
these reports were first started substantially understate
the black participation in the Long Island Railroad?
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MR. HOLWELL: Objection to the form of the
question, your Honor.
THE COURT: Well, I guess you have to rephrase
it. It is more a statement than a question, but you could
ask the question in the proper form.
Q Can you state any definite conclusion from
your preliminary studies or with reasonable certainty as
to the accuracy of the EEOC reports filed by the Long
Island Railraod since 1966?
A The best way I could answer that question would
be to indicate that the reports filed represented at least
a minimum participation of blacks and minorities on our
property.
Q Your preliminary studies indicate that the
actual participation of blacks would be what?
A Would be significantly higher.
Q Mr. Zeman, I want to read you certain statements
from the record in this case. Back in 1975 proceeding
in regard to Mr.- Harris at page 90, line 20, Mr. Harris
was asked, "Were you the first black man ever to hold
a management position on the railroad?
"A To my knowledge.”
At page 222 of the 1975 record Mr. Holwell:
"The materiality, your Honor, is to establish
M i l l I I I ! KM i m i l l ' I C o t l R ! K I T O R S I K Y ( I s O It 'R I U U t '\t
[740]
dwr f 4 4 Zeman-direct
(\- 58G
that management were in an all white category of jobs
now, and certainly when Mr. Harris applied for the job."
And at page 323 of the present record made
here in this latest proceeding.
i4R. HOLWELL: The statistics were the same thing_
in m3 ns cjorno n t. You Hcivo pirotocilDly loss tlictn 2 poir cont
and prior to Mr. Harris there was zero per cent in manage
ment."
Now, Mr. Zeman, based upon your personal knowledge
of blacks employed by the Long Island Railroad in management
positions are these statements true?
A Not correct.
MR. HOLWELL: May we take one at a time, your
Honor?
THE COURT: Well, or any of them.
Are any of them true.
Is this the first one true?
THE WITNESS: No.
THE COURT: Is the second one true?
THE WITNESS: No.
THE COURT: Is the third one true?
THE WITNESS: No.
THE COURT: I think there was a fourth, I
forget.
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dwrf 45 Zeman-direct
MR. STOKES: Only three, your Honor. That last
one did, 1 say, page 323 — it is page 329.
Q From your personal recollection can you name some
blacks in hong Island Railroad management positions prior
to Mr. Harris' appointment in 1972.
A All right. Henry Cross,Nathan Hale, A1 Donogal
a fellow called Blackey. Mr. Wilson and a Mr. Walker.
Q I show you certain photocopies, Mr. 7,eman,
and I ask you whether those are photocopies that you made
of the individuals, of the service records of the
individuals you just named?
A Yes, these were secured from the records
department, that is correct.
Q That is the record department of the personnel
department of the Long Island Railroad?
A Yes.
0 Records kept in the regular course of business?
A Yes.
MR. STOKES: I show them to counsel and ask that
they be marked for evidence.
MR. IIOLWELL: Your Honor, these are documents
that were taken out of the files. We like the
opportunity to look at the entire file. I don't know if th
are — these are certain service record cards.
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dwrf 46 Zeman-direct
A 588
THE COURT: You want to ask him about it.
VOIR DIRE EXAMINATION
BY MR. HOLWELL:
Q Arc these the complete personnel files on the
individual?
A No.
Q These are just the —
A Service record cards of the individual.
MR. STOKES: And they are, of course, only
being offered to show the date of appointment of the
individuals.
MR. HOLWELL: No objection to that extent.
THE COURT: All right, received.
(Defendants' Exhibit N received in
evidence.)
BY MR. STOKES:
Q Referring to Exhibit N, Mr. Zeman, for each of
the individuals named will you indicate just of the various
positions that these individuals held which were the manage
ment positions?
A All right.
Q And at what time they were appointed?
A Henry Pierce Cross on July 25, 1968 —
THE COURT: What position?
N o n m i R N l > i v . ) ! C l C O U R I R l - r O R ' I l k S . 1 1 S C O U R I H O P M
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dwrf 47
THE WITNESS: Assistant supervisor of training.
Zeman-direct /{- 589
Willy Fred Wilson, Sr., supervisor —
THE COURT: When appointed?
THE WITNESS: Excuse me?
THE COURT: When was he appointed?
THE WITNESS: Why, yes, excuse me, your Honor,
I have to look. It looks like 7/18/62.
THE COURT: Position?
THE WITNESS: Supervisor of special services.
Altamont Oswell Donegal, 8/24/67, inspector MW.
John Francis Walker, 11/21/66, project engineer.
Nathan Robert Hale, 3/25/68, supervisor accounts
payable and accounts receivable.
Woodrow Edward Blackey, 2/1/67, MW inspector.
Q Referring again to these number of these individual
received further promotions in management after that,did they
not?
A Yes, they did.
MR. STOKES: I won't go through that, your
Honor. The exhibit will speak for itself. I have no
further questions. ■*
THE COURT: All right.
soniin kn nisi k;i court r h*ohti rs. us c ou ki h ou m
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[744]
dwrf 48 Zeman-cross
A- 590 i
CROSS EXAMINATION
BY MR. HOLWELL:
Q Mr. Zeman, you said you undertook an audit in
September, 76. That audit was with respect to what year
or years? j
A The current year.
0 Which would be 1976?
A 1976.
Q You said that that showed a gross misrepresentation
of the total number of blacks, is that correct?
A That’s right.
Q Did .that vary from job to job or was that across
the board?
m ̂ *A Well, it is the full spectrum of employment.
Q I know, but the misrepresentation, did that
appear in certain crafts and not in other crafts?
A No, I hadn't noticed any special trend in
any one particular area.
Q This was a written document that you prepared?
A It is a written document I received,yes. St
Q Then you said also you started to go back and
look into other years, is that right?
A To make the conclusion that it preceded into
the previous years.
Q You went bu k and looked at other years?
simiiiuN t>»s:*-■ i*:i «:<«iki iutokhrn. u .y c ou ki h ok m :
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dwrf 49 Zeman-cross
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A Yes, in other words, if an individual appeared
in the year '76, and on a random basis I went back to
previous years' reports because this is a current
employee, and in these cases the individuals didn't appear,
so it was erroneous in the previous year, but bear in mind
this is a preliminary report.
Q This checking back that you undertook,you had
some records on that also, right?
A Oh, yes.
Q How far back did you check?
Well, I can only use the active population, so
some of the individuals who are listed as being erroneously
noted, go all the way back to 1950, *51. I have no
other records to refer back to, but only the live
population that I have now.
Q You said that you found at least 130 names—
A I would say at least 130 blacks that were so
effected that were not included in the report.
Q They were in the '76 report, weren't they? I
mean their names were there.
A Only in the report that I had generated from
the audit.
Q In the first report that you had, right, where
it was inaccurate —
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dwrf 50 Zeman-cross
4 - 592
A Let me answer your question this way:
We are required to file an EEO 1 report and
this particular report was generated through normal course
of business. When I received questions, and I noticed
errors in the particular source documents that I was
using on this state case, I proceeded to have a complete
audit of the company and pick up codes on that basis, so I
could only work from the active population.
So if someone were to have terminated prior to
they wouldn't be, they wouldn't show; for any
reason.
Q But essentially what you did is you had an
individual’s name there, and he had the wrong code next
to it as opposed to having the individual not showing up
on the list.
A It is the same thing.
Q It is the same thing?
A Exactly.
Q Well, could you have whites that didn't show up on
the list, too?
A Yes, there were some.
Q There were whites that didn’t show up on the list
as well as blacks?
A Yes.
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dwrf 51 Zeman-cross
A- 593
MR. HOLWELL: At this time, your Honor, we would
request the production of these as the best evidence
and move to strike Mr. Zeman's testimony as to grossly
inaccurate figures. The document will speak for itself.
The railroad's EEOC are business records. To the extent
that the railroad wants to realize them at this point
they are certainly allowed to do so —
MR. STOKES: I think Mr. Zeman has indicated
that this is something that has just recently been
discovered. It is a preliminary study. He has given his
testimony as to what he has found on it and I think his
testimony stands.
THE COURT: Do you have the records?
MR. STOKES: I don't have any records of it
with me, your Honor.
THE COURT: Do you have the records?
THE WITNESS: At the office what we used.
MR. STOKES: We are happy to let them come to see
it.
THE COURT: That is all he asked. I won't strike j
his testimony but you will get an opportunity to look at the
report.
MR. HOLWELL: We will get an opportunity to look
at the record but we won't get an opportunity to question
S O U I H I K N I MS i . I C I t O U R I R l l ' O R l I K V i ! S C O t l R I l l O I K !
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dwrf 52 Zeman-cross
A 594
Mr. Zeman.
THE COURT: If you have to question him aqain
why I will be here for two months in this courtroom.
Will you make them available?
THE WITNESS: Certainly.
THE COURT: Can you pick them up tomorrow and
look at it?
THE WITNESS: Sure.
THE COURT: All right, do it.
BY MR. HOLWELL:
Q You said that you could recall six black workers
who held management positions prior to 1972, was it?
A That's right.
Q How did you come across these six individuals?
A Well, I had personal contact with, I know them for
years. c
Q You are in charge of the personnel department
or you work in the personnel department?
A Throughout the years we have business
dealings from one degree to another, and these individuals I
know of.
Q You worked in the personnel department, though?
A Oh, yes.
Q You know of any other black workers other than
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dwrf 53 Zeman-cross A- 595
these?
A Prior to 1972?
Q Yes.
A Offhand, no.
Q About what percentage of the total management
population would those six workers comprise assuming that
they were on the job all at the same time?
A I don't know, because each of their employment
dates and their appointment dates are at different times.
Q But assuming for the benefit of the doubt that
they all worked at the same time, those circumstances,
would comprise I guess under 2 per cent of the management
population, wouldn't they?
A Based on the audit that I have just done I
couldn't even answer that question because I don't know
if it is, if it would be higher or lower.
Q Could you tell me that six people would be under
2 per cent of the management population?
A No, I couldn't say.
MR. HOLWELL: We have no further questions, your
Honor, until such time as we have questions arising out
of the documents.
MR. STOKES: I have a couple of redirect here,
sotnnikN ms.' icr court rtpokitrs. u s. cotmmotM
TOM Y >11,MU:. Niw YORK NY. -
your Honor.
[750]
dwrf 54 Zeman-redirect
K- 596
REDIRECT EXAMINATION
BY MR. STOKES:
Q Mr. Zeman, in response to Mr. Holwell you
indicated that this audit had indicated there was some
whites, approximately,some whites that would have been
misnumbered?
A Oh, 12, 13.
Q As opposed to 200 black?
A As opposed to 130 odd black.
Q You have named six individuals that you personally
know that were in black management positions prior to
1969 —
THE COURT: No, they were blacks in management
positions.
MR. STOKES: I get my tongue mixed up here.
Q Could there have been other blacks that you do not
know about that held management positions prior to 1969?
A Certainly.
MR. STOKES: I have nothing further.
THE COURT: You may step down, • ' ■
(Witness excused.)
THE COURT: Next witness.
MR. STOKES: Our next will be Mr. McGowan.
THE COURT: I believe they were going to stipulate
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[755]
2 dwmch Harris-redirect
A 5 9 7
Do you have any specific recollection of
failing to turn in four or five reports?
A • N o , I don't .
Q Do you have any recollection whatsoever of
any incident in which you were asked to respond to a
question which Mr. Gaynor might be referring to when he
says he recalled you turning in some four or five reports
over the last year?
^ A Well, I do recall sometime in about December
of 1975 coming in one night, and Mr. Gene Pico was then
the assistant trainmaster working from 3:00 to 11:00 or
12:00, 3:00 to 12:00, came in. He gave me a letter from
Mr. Gaynor stating that I had recorded the time that line 1
had returned to service, but failed to do so in regards
to the time it was taken out of service, and I explained
to him that at that time that line 3 was in service,
and I was focusing my attention on line 3 at the time that
line 1 went out of service, which was handling Amtrak's
operation.
I recall that I had recorded on my station-
master's sheet, but then it was, I forgot to record it
on the, in the book, in the log book that morning.
Q Did Mr. Pico say anything further to you
about this incident?
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[756]
3 dvmch Harris-redirect
A - 5 9 *
A No, he accepted the explanation and I haven't
heard anything from it since.
Q Or anything from Mr. Gaynor since?
A No, I haven’t heard anything from Mr. Gaynor.
Q I show you a document, a copy of a document
dated December 24, 1975 to JJH from JJGaynor, terminal
superintendent, to EEHarris, assistant stationmaster.
I ask you, is this a copy of the document
that Mr. Pico handed to you that you have just been dis
cussing?
A Yes, it is.
MR. SOLLIS: I'd like to offer that into
evidence.
MR. STOKES: May we see it?
(Pause)
MR. STOKES: I have no objection.
MR. SOLLIS: Your Honor, we are offering this
for the limited purpose of a copy of what Mr. Harris
received and we do not vouch, nor do we contend that its
contents are necessarily accurate.
(Plaintiffs' Exhibit No. 7 was received in
evidence.)
Q Do you have any other recollection of any
other incident Mr. Gaynor might be referring to when he says
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4 dwmch H a r r i s - r c d i r e c t
A 59S
you to turn in some 405 reports over the last
year that he requested?
A No, only one possibly, and this was not from
Mr. Oayr.or. It was from Mr. Ralph Diaz, the stationmastcr
who requested that I have a report for Mr. Rizzacasa,
trainmaster, the following morning, and at that time when
Mr. Rizzacasa eame in I was in the process of making the
report out, and he started asking me questions about the
delay of tne two trains the preceding night.
I explained to him what had happened during
that period and he accepted it. He said he would take
care of it and that was the end of that. I.hadn't heard
anything further from it.
Q M r . Harris, I show you a copy of a letter ■which
appears to be signed by R. Diaz, stationmaster, addressed
to Mr. E. E. Harris, assistant stationmaster, dated 9/16/76,
and I ask you if this is a copy of the letter from Mr.
Diaz that you have just been referring to.
A Yes, it is.
Q Have you heard anything further in connection
with this incident?
A No, I haven't.
MR. SOLLIS: Mr. Stokes, I'd like to offer this
into evidence.
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5 dwmch Harris-redirect
MR. STOKES: I have no objection.
MR. SOLEIS: Again, your Honor, we are
offering it not as proof of the contents, but as an
i
indication of what Mr. Harris received.
(Plaintiffs' Exhibit No. 8 was received in i
evidence.) t!Q Mr. Harris, did there come a time when you
obtained a report from your dentist in connection with the
j
dental work that you have testified about during the course
of this trial, dental work occurring on the evening of
November 11?
A Yes.
Q I show you a document which you have provided i
me on the letterhead of Clarence Boone, DDS, and ask you
if this is a copy of the document that you obtained.
MR. STOKES: I don't know why we need go
into this, your Honor. We are not contesting that he
went to the dentist.
THE COURT: Very well.
MR. STOKES: Mr. Harris testified he was at
the dentist from 5:00 to 6:00. So we don’t contest that.
MR. SOLLIS: In that case you have no objection I
to me offering it into evidence.
THE COURT: It doesn’t make any difference. J
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[761]
8 dwinch Harris-redirect A 601
are working now?
A No. I would have to grab whatever I can.
They have cut the ushers’ roster down drastically within
the past couple of years, and I would only be able to
hold very unpleasant jobs.
THE COURT: You say $30 less. Is that a week,
a month or what?
THE WITNESS: Per week. I believe.
Q Can you tell me any other reasons why you
want to hold onto your job as assistant stationmaster
besides the pay?
A Well, besides the pay is that the first thing
is that I ’m an American citizen, I ’m a veteran. I fought
in World War II; my father in World War I. I ’m a citizen
of the State of New York.
I look around me and other, citizens are moving
up the line. There is no reason why I shouldn't.
And, in addition to that, an usher job which
I would be able to hold today would be one that would
entail that sometimes I stand up for three hours straight
and I have a condition which — varicose veins — which that
would produce a hardship on me.
In addition to that* the hours that I maintain
as an assistant stationmaster complements my situation at
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30 dwmch H a r r i s - r e d i r e c t
jV 602
tell you precisely where 82 went out of line. In other
words, when I, or when the stationmaster fills out that
sheet --
Q You can't determine that from this —
THE WITNESS: -- it has a number there that
says that 83 normally goes out of line 3, that would be
crossed out and 1 would be placed on top of it.
THE COURT: The only accurate way we can
ascertain what we are trying to do here is to take a look
at the stationmaster’s log, isn’t it, really?
MR. RUBIN: I move the exhibit be stricken.
THE COURT: The stationmaster’s sheet, that
would let us know, would it?
THE WITNESS: Right.
THE COURT: Even though it may have gone out
at 1:00 o'clock, the hold may have gone on fifteen or
twenty minutes before then, or it may have gone on an hour
before then; isn't that right? Even though, as a practical
matter, it may have gone out an hour before, but that's
possible, isn't it?
THE WITNESS: Yes, sir.
THE COURT: The only real significance we can
get is if we could have the stationmaster's log coupled
with this information that you have here; isn't that right?
SOUTHERN n r KICT COURT REPORTERS. V S . COURTHOUm
[79]
sinwc Bloomfield A G03
A He r>aid he was too busy on the night of
the 9th to write it, and he was too tired in the
morning to write it, and he was going to write it at
home. But then when he came in he didn't have it
with him. Then he mentioned something about a dental
appointment somewhere In the late afternoon or early
evening^— I think it was around 6; I'm not sure— and
that Interfered with him writing the report, and he
was unable to even have it when he came In. And then
he indicated that he didn’t think anybody would be
requesting It when he came to work. . *
Q Did Mr. Harris Indicate that he planned to
write the report during the morning of November 12?'
A He indicated that he would have It In the
morning of November 12, which was not when It was
requested. .
Q Did Mr. Gaynor Indicate to you whether he
believed that Mr. Harris had been unable to complete
the report? !'
MR. STOKES: Could I hear that question,
please?
(Question read) T* '
MR. RUBIN: That does not make any sense to
me.
SOUTHERN DISTRICT COURT REPORTERS. US. COURTHOUSE
FOLEY SQUARE. NEW YORK.. N Y. - 791-1030
%
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
A- 604
- -x
FRANCES JOY CAPERS, et al., each
individually and on behalf of all
other persons similarly situated.
Plaintiffs,
-against-
LONG ISLAND RAILROAD, et al..
Defendant.
A P P E A R A N C E S :
WHITE & CASE, ESQS.
Attorneys for Plaintiffs
14 Wall Street
New York, New York 10005
THOMAS MC GANNEY, ESQ.
RICHARD J . HOLWELL, ESQ.
TODD B. SOLLIS, ESQ.
RONALD M. HERSHKOWITZ, ESQ.
ROBIN COLIN-GREENE, ESQ.
Of Counsel
72 Civ. 3168
OPINION
GEORGE M. ONKEN, ESQ.
Attorney for Defendant
The Long Island Rail Road Company
Jamaica Station
Jamaica, New York 11435
RICHARD H. STOKES, ESQ.
LAURENCE H. RUBIN, ESQ.
ARMAND J. PRISCO, ESQ.
Of Counsel
GAGLIARDI, D.J. A- G05
Plaintiff Edward E. Harris ("Harris"), as a
named plaintiff in the above action and a member of
the class of black employees of the Long Island Rail
road ("LIRR"), moves by order to show cause for a
temporary restraining order and a preliminary injunc
tion directing the defendant LIRR to reinstate him
to his former position of Assistant Station Master
("ASM") and restraining the LIRR from future violations
of his rights under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §2000e et_ seq. Harris also moves
for back pay and reasonable counsel fees. This court
has jurisdiction under 42 U.S.C. §2000e-5(f)(3).
Harris alleges that he is entitled to the
requested relief under 42 U.S.C. §2000e-5(g)^ because
his demotion from the position of ASM was the result
of race discrimination, 42 U.S.C. §2000e-2 (a) , and/or
retaliation for his participation in this lawsuit. 42
U.S.C. §2000e-3 (a). ̂ Harris also alleges that he has
been deprived of his Fourteenth Amendment due process
rights because the LIRR did not grant him a hearing in
connection with his demotion. The LIRR contends that
Harris was lawfully dismissed for poor performance, in
subordination and his past employment record and is
therefore not entitled to the requested relief. The
court denies plaintiff injunctive relief.
Plaintiff's motion having been brought before
this court on November 19, 1976, the motion was set for
H - o
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A- 606
hearing the following day and the TRO application denied.
The LIRR was prepared to commence the hearing the next
day, however, at plaintiff’s request the hearing was
postponed to allow plaintiff further discovery. Six
days of evidentiary hearings were held in December,
1976 and January, 1977. Sixteen witnesses were called
and numerous depositions and exhibits were introduced
into evidence. The court having considered the pleadings,
the testimony of witnesses and the documents in evidence
makes the following findings of fact and conclusions of
law as required by Rule 52 Fed. R. Civ. P.
A brief summary of the history of Harris' em
ployment w7ith the LIRR including his involvement under-
!yin9 the instant preliminary injunction action is initially
required. Plaintiff is a black American citizen, 55 years
of age. He was first employed by the Pennsylvania Railroad
in 1954 as a mail handler. In 1963 he became an usher,
the top union job at the Pennsylvania Railroad, and in 1964
he went on the Long Island Railroad's payroll. In 1972
he was appointed an ASM, a management level, non-union job.
On two prior occasions plaintiff has appeared
before this court seeking injunctive relief for alleged
LIRR discrimination. The first time, in September 1974,
the LIRR attempted to demote the plaintiff from ASM to
usher status on the ground that he had failed a Book of
Rules examination. After a hearing, the matter was re-
- 3 -
A 607
solved when the LIRR agreed to restore Harris to the
position of ASM if he passed another Book of Rules
examination administered to a randomly selected group
of ASMs- This examination was conducted and Harris,
receiving the highest score of the seven ASMS who took
the test, was immediately reinstated.
The second request for injunctive relief oc
curred in September 1975 when the LIRR removed Harris
from service as an ASM for alleged insubordination and
dereliction of duty when he argued with his superior
and failed to have an usher announce a track change
for a departing train. After a three day hearing in
this court, the LIRR agreed to reinstate Harris to
his ASM position after Harris agreed to accept a 60
day suspension.
At that 1975 hearing, the LIRR introduced evi
dence of Harris' prior unsatisfactory performance in
his ASM position in 1974 and 1975. This evidence in
cluded five instances, not effectively rebutted by the
plaintiff, where Harris was formally notified or repri
manded for his failure to make proper log entries or
reports or for his poor performance in connection with
train delays.
On November 11, 1976, Harris was again removed
from his ASM position. This removal is the cause of
plaintiff's current motion for injunctive relief. Harris
worked the 11:00 P.M. November 9th to 7:00 A.M. November
- 4 -
A' 608
10th ASM shift at Pennsylvania Station. On that night
shift the ASM is in overall charge of the LIRR operation at
the railroad station. On that morning of November 10th
the departure of four trains was delayed. Harris was
demoted for his alleged responsibility for the delay,
for failing to timely file a specially requested report
of the November 10th incident, and for his past record.
On the morning of November 10th four LIRR
trains were delayed directly or indirectly up to eleven
minutes by the taking out of service of line 3 of Penn
sylvania Station, the Long Island Railroad's eastbound
tunnel. When line 3 is taken out of service, the depart
ing Long Island Railroad trains must be rerouted by the
ASM to share line 1, Amtrak's eastbound tunnel. Line 3
is removed from service several times a month, usually
between midnight and 1:00 A.M., for regularly scheduled
maintenance.
It is undisputed that on the night of November
9, 1976, Harris and other Long Island Railroad personnel
knew that line 3 would be going out of service sometime
after 11:00 P.M., and that Harris ascertained this fact
at the time he reported for duty. The exact time line 3
closes is determined by the operator in Amtrak's A Tower
and then communicated to other Amtrak and Long Island
Railroad personnel. The ASM must ascertain the time
line 3 is to close in order to position Long Island Rail-
- 5-
/V 609
road trains on their arrival so that they can use line
1 after line 3 is closed without changing crews and
without unnecessary delay. That night A Tower deter
mined that line 3 would close at 12:41 A.M. after the
departure of Train 400 and prior to the departure of
Train 82.
At the hearing there was sharply conflicting
testimony as to the exact time Harris received notice
of the closing. Notice is received over a squawk box
in the ASM's office. Several defense witnesses testi
fied that Harris had notification between 11:55 P.M. and
12:05 A.M., in sufficient advance notice for him to re
position the LIRR trains and avoid the subsequent delays,
while Harris testified' that he received no notice until
12:41 A.M., the exact time of the closing.
The court does not resolve this factual dispute
but only notes that Harris had a duty to be more thorough
in his investigation of the time of the line closing and
more cautious and responsible in performing his ASM du
ties. Harris and all other LIRR and Amtrak employees
on duty that night knew that line 3 was going out after
11:00 P.M. and based on recent past Penn Station history
he had good reason to know that it was likely it would
go out prior to or around the time of the departure of
Train 82, requiring that train, and those following it.
- 6-
&
to' be diverted to line 1. He also knew that A Tower,
which often conferred with ASMS on line closings,
had often not been communicating with him over the
past months. Because of the important duties of the
ASM between notification and closing of line 3, Harris,
particularly in view of his communication problems,
had the responsibility to continuously investigate and
to ascertain the exact time of the closing. Even assum
ing as true Harris' disputed testimony that he was out
of the office between 12:15 and 12:25 A.M. and could not
hear the squawk box communications, it is not enough
that he called the yardmaster twice between 11:45 and
12:15 to find out when line 3 was going out. Further,
that absence at a crucial time is not sufficient excuse.
Harris should have properly repositioned Train 82, and
even if he was notified at 12:41 of the line 3 closing,
he should have been alert to promptly reposition and
avert or reduce the delays of the following trains.
While others may have also been able to avert these de
lays, Harris had the final responsibility.
As a result of the delay of the four trains,
the assistant superintendent of transportation for the
LIRR on the morning of November 10th requested the ter
minal superintendent, Mr. Gaynor, to find the reason for
the delay. Gaynor instructed an assistant to request
Harris to provide a written report- setting forth the
facts of the delay. Harris was told when he reported
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4
7 -
to work at 11:00 P.M. on November 10th that Gaynor wanted
the report by the end of Harris' shift the following
morning.
Harris knew that Gaynor*s request for a written
report was a serious request and while such a written
request was infrequently demanded it was in keeping with
proper LIRR policy to find the reasons for delays and
other operational failures. Harris was told by Gaynor*s
assistant that the station master's log book report, which
Harris had already written*was insufficient and Harris
knew he had to prepare a new and more complete written
report. Harris did not write the report during his shift
because he claimed he was too busy. While there were
some active periods that night, Harris could have written
the report any time during his shift.
Failing to write the report during his shift
and declining to stay late, Harris returned home. He
called a supervisor at the LIRR and told him when he
arrived home that morning that he had not completed
the report. He received an extension and was told to
bring the report with him that evening. Harris failed
to write the report by that evening claiming that a
dental emergency involving the replacing of an inlay
prevented him from writing the report. However, he was
only at the dentist’s office between 5:00-6:00 P.M. He
returned home by 7:00 P.M. and instead of writing the
fii 6 1 1
- 8 -
# i
report went back to sleep, ate dinner and returned to
work. When he reported to work at 11:00 P.M. Gaynor,
who -works the day shift, was in his office and requested
the report and an explanation. Harris, failing to produce
the report, was told to exercise his seniority rights.®*
Title VII Claim
Plaintiff moves for a preliminary injunction
under Title VII claiming, as noted above, that he was de
moted because of his race^ or in retaliation for his
involvement in this lawsuit.® As an individual class
member to a Title VII suit, Harris is entitled to move
for such preliminary relief. See Culpepper v. Reynolds
.Metals Co., 421 F.2d 888, 893-94 (5th Cir. 1970); Pett
way v. American Cast-Iron Pipe Co., 411 F.2d 998 (5th
Cir. 1969). The settled rule in this Circuit is that
"a preliminary injunction should issue only upon a clear
showing of either (1) probable success on the merits
and possible irreparable injury, or (2) sufficiently
serious questions going to the merits to make them a
fair ground for litigation: and a balance of hardships
tipping decidedly toward the party requesting the pre
liminary relief.” Gresham, v. Chambers, 501 F .2d 687,
691 (2d Cir. 1974), quoting Soncsta Int*l. Hotels Corp.
v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973)
This court holds that plaintiff, having failed to show
either "probable success on the merits" or "sufficiently
A 6 1 2
A- 6 1 3
serious questions going to the merits to make them a
fair ground for litigation" for either of his claims,
is not entitled to injunctive relief.9 Cf. Gresham
v. Chambers, supra at 691.
In evaluating plaintiff's claim, it is im-*
portant for the court to note that an employer may
discharge an employee for any reason except discrim
ination or retaliation against the employee's pro
tected Title VII activities. See. Christian v. Gen-
— ra3.Motors- Coro., 341 F. Supp. 1207, 1214 (E.D. Mo.
1972) • g ff ,d without opinion. 475 F.2d 1407 (8th Cir.
1973^7 Barnes v. Lerner Shops of Texas, Inc., 323 F.
Supp. 617, 622 (S.D. Tex. 1971) . Title VII does not
require that an employer like his employees. "No
federal statute prohibits discrimination per se; rather,
what is prohibited is discrimination that is racially
motivated." Richardson v. Hotel C o r p . o f America, 332
F. Supp. 519, 521 (E.D. La. 1971), a f f’d , 468 F.2d 951
(5th Cir. 1972); accord„ Bradinaton v.. International
Business_Machines Coro., 360 F. Supp. 845, 854 (D. Md.
1973) ' aff’d * 492 F .2d 1240 (4th Cir. 1974).
I n weighing the evidence in this case, this court
takes notice of the Supreme Court decision in McDonnell
kgag las Corp. v. Green, 411 U.S. 792, 802-05 (1973),
where the Court allocated the burden of proving the facts
necessary to establish liability in Title V I I actions.10
- 1 0 -
1
Initially, the plaintiff must carry the burden of estab
lishing a prima facie case of racial discrimination.
The burden of going forward with the evidence then shifts
the defendant to show a nondiscriminatory reason for
the^employee's demotion. Plaintiff is then afforded an
opportunity to show that defendant's asserted reason is
a mere pretext. Id.; see Garrett v. Mobil Oil Corp.,
531 F.2d 892, 8-95 (8th Cir. 1976) ; Franklin v. Crosby
Type Co. Int'l, Typo. Union, 411 F. Supp. 1167, 1171-72
(N.D. Tex. 1976). In this case these same burdens would
aFPiy for a showing of "probable success on the merits"
or "sufficiently serious questions going to the merits
to make them a fair ground for litigation" in order to
meet the standard for a preliminary injunction.
The court finds, that plaintiff proved a prima
^ac^e case. Harris belongs to a racial minority, he
held a job with the LIPvR and according to his testimony
he performed his work within the.normal qualifications
required. He further testified that he was removed from
his ASM position without legal cause. See McDonnell
Douglas v. Green, supra at 802; Potter v. Goodwill Indus
tries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975);
Franklin v. Crosby Type Co. & Int'l. Typo. Union, supra
at 1171.
However, the court finds, when the burden is
shifted to the defendant, upon the entire evidence includ-
A 6 1 4
1 1 -
)
ing the demeanor of witnesses who testified at the hear
ing, that the LIRR removed Harris for valid, nondiscrim-
inatory reasons and has therefore sustained its burden.
A combination of three factors justifies the LIRR's de
motion of Harris. First, and most critically, was Harris'
insubordinate failure to supply the urgently requested
report explaining the train delays of the morning of
November 10, 1976. The LIRR had a clearly legitimate
interest in requesting the report to find the cause for
the delays. Harris understood the serious urgency of
the request, and he had an opportunity both during his
shift on November 10-11 and during the day of November
11 to prepare the report and elected not to do so. This
factor combined with his activities as ASM on the night
of the train delays constitute sufficient insubordination
and poor performance to justify his removal. During his
shift he had a responsibility and a duty to find out
when line 3 was going out and to plan accordingly. With
out deciding whether he was directly responsible for the
delays that night, this court concludes that Harris was
negligent in his ASM duties. Additionally, Harris' past
conduct as an ASM including the reprimands and notices
of his poor performances in 1974 and 1975 and the activi
ties and evidence of insubordination surrounding his 60
day suspension in 1975 must be considered in upholding
his present removal. In view of all these factors and
A-615
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1 I
circumstances, the LIRR's decision to order Harris to
exercise his seniority was a racially neutral, fair
and .justifiable personnel decision. See Garrett v.
Mobil Oil Cofp . , 395 F. Supp*. 117, 125 (W.D. Mo. 1975),
aff1d , 531 F.2d 892 (8th Cir. 1976), and cases there
cited.
After proof that the plaintiff's discharge
was for cause, the burden of persuasion returns to
the plaintiff to show that the defendant's stated
reason for discharge was in fact a pretext for dis
crimination prohibited by Title VII. McDonnell Doug
las v. Green, supra- at 804 . Plaintiff has failed to
meet this burden. Plaintiff has failed to prove any
racial or retaliatory motive on the part of the LIRR.
Proof of a statistical imbalance in the LIRR's manage
ment hiring is alone not enough to show such a pretext.
This court recognizes that an employer can
remove and refuse to reinstate an employee only if the
criterion applied is applied alike to members of all
races. McDonnell Douglas v. Green, supra at 804. How
ever, plaintiff failed to establish evidence of disparate
treatment in his case sufficient to meet his burden of
establishing such a pretext. The LIRR introduced evidence
of twenty white management employees who were dismissed
or told to exercise their seniority rights between 1971
and 1975. Ten of these employees were removed specifically
/V 616
- 13 -
f r
for insubordination in their refusal to cross a union
picket line during a lengthy LIRR strike in 1972. The
others were removed for a variety of reasons including
poor perforrriance, lackadaisical handling of assignments,
failing to. report train delays and a combination of
these reasonst The LIRR also introduced evidence of
other white management .employees similarly removed from
service since 1975. While the plaintiff introduced
evidence of white management employees who received
lesser discipline for different infractions, in view of
the LIRR's overall disciplinary policy, this court cannot
find that plaintiff has met his burden of showing that
his punishment for his particular conduct was more severe
than that of other white management employees or that the
removal of other white management employees was for conduct
more egregious than Harris' conduct leading to his removal.
Plaintiff's overall ’employment record and the conduct that
triggered his November 11th dismissal gave the LIRR good,
nondiscriminatory grounds to remove him with no indication
that a w?hite management employee would have received dif
ferent discipline. Therefore, this court does.not find
that plaintiff has presented the necessary evidence of
disparate treatment under the circumstances of Harris'
removal to meet his burden and to be entitled to injunc
tive relief.
In sum, on the record here there is no evidence
to support plaintiff's conclusory assertion that he was
A - 6 1 7
- 14 -
* 1
dismissed because of his race or in retaliation for his
activities in the Title VII class action suit. While
plaintiff has made out a prima facie case, defendant
has met its burden of showing nondiscriminatory reasons
for the removal and these reasons were not pretextual.
Rather, evidence in this case establishes that plaintiff
was removed from his ASM position by the LIRR solely be
cause of plaintiff's unsatisfactory conduct as an employee
and that factors of race or status as a plaintiff in the
class action lawsuit had ho bearing on the LIRR's actions.
Plaintiff has shown no violation of 42 U.S.C. §§2000e~2(a)
or 2000e-3 (a) and has not met either of the alternative
criterion for a preliminary injunction under Sonesta Int'l.
Hotels Corp. v. Wellington Assoc., supra. He is therefore
not entitled to injunctive relief under 42 U.S.C. §2000e-5(g).
Due Process Claim
Plaintiff contends that his demotion from the
position of Assistant Station Manager without a hearing
is in violation of his rights under the Due Process
Clause of the Fourteenth Amendment. The court finds the
plaintiff's argument unpersuasive and holds that the
LIRR, even assuming it is acting under color of state
law,^l was not required to give plaintiff a due process
hearing under the Fourteenth Amendment.
At the threshold, successful assertion of any
due process claims turns on whether Harris' interests
A- 6 1 8
- 15 -
\
in retaining his ASM position rise to the level of. those
encompassed by the Fourteenth Amendment Vs protection of
property" or "liberty". The Supreme Court decisions
in Board of Regents v. Roth,. 408 U.S. 564 (1972) and
Perry v. Sindermann, 408 U.S. 593 (1972) provide that
*
when either a deprivation of a property interest, such
as a termination of an employment contract, or a depri
vation of liberty, such as an employment record that
operates to absolutely foreclose other employment oppor
tunities, result from the decision to discharge an em
ployee, due process requires that notice of the charges
and a hearing must be granted to the employee. See Vel-
ger v. Cawley, 525 F.2d 334, 336 (2d Cir. 1975), r e v ’d
on other grounds Sub n o n ., Codd v. Velger, 45 U.S.L.W.
4175 (U.S. Feb. 22, 1977); Simard v. Board of Education
of Town of Groton, 473 F.2d 988, 992 (2d Cir. 1973).
Plaintif f *s Property Interest in His Employment
The Supreme Court in Board of Regents v. Roth,
supra, and Perry v. Sindermann, supra, defined those
property" interests that require procedural due process
protections. Such "property" interests include contractual
or statutory rights to continued employment as well as
rights acquired under a "<de facto tenure program" result
ing from 'the existence of rules and understandings, pro
mulgated and fostered by state officials, that may jus
tify [a] legitimate claim of entitlement to continued
- * /
A - 619
- 1 6 -
\
employment. . . ." Perry v. Sindermann, supra, 408 U.S.
at 600, 602; see Russell v. Hodges, 470 F.2d 212, 216
(2d Cir. 1972). However, a mere "unilateral expecta
tion" of continued employment is not sufficient "prop
erty" to trigger due process guarantees. Board of
Regents v. Roth, supra, 408 U.S. at 577; see Wahba v .
New York University, 492 F.2d 96, 98 n. 2 (2d Cir.),
cert, denied, 419 U.S. 874 (1974).
In this case, plaintiff has not shown any
"property" interest in continued employment. Plain
tiff, as an appointed, nonrepresented, management em
ployee of the LIRR, has alleged no contractual or sta
tutory claim to continued employment. Furthermore,
Harris, although he was a "permanent" ASM and had worked
as an ASM for five years, was not entitled to tenure pro
tection and alleged nothing to show de facto tenure. See
Bishop v. Wood, 96 S. Ct. 2074 (1976); Russell v. Hodges,
supra at 217.
Harris had at most a "unilateral expectation"
of continued employment, as there existed no well-estab
lished joint understanding as required for a "de facto
tenure program." Simard v. Board of Education of Town
of Groton, 473 F.2d 988, 992 (2d Cir. 1973). Harris knew
that when he was promoted from, a union position to a man
agement position that the LIRR w a s ‘making no promises about
his continued employment. The LIRR had in the past dis-
4 - 6 2 0
- 1 7 -
\
- AS21
missed or disciplined a significant number of manage
ment employees including Harris who had accepted a
sixty day suspension in 1975.12 As such, there could
be no mutual expectation of continued employment suf
ficient to establish a "property" interest deserving
of the protection of due process.
Plaintiff's Claim o.f a Deprivation of Liberty
In order to demonstrate a deprivation of
"liberty", Harris must demonstrate that the reasons
given for his demotion "might seriously damage his
standing and associations in his community" or had
imposed "a stigma or other disability that foreclosed
his freedom to take advantage of other employment
opportunities." Board.of Regents v. Roth, supra,
408 U.S. at 573; see Wahba v. New York University, supra,
492 F.2d at 98 n. 2; Simard v. Board of Education, supra,
473 F. 2d at 992; Russell v. Hodges, supra, 470 F.2d at
216. The Court made clear that by the latter phrase it
meant something more than the inevitable disadvantage
when a person "simply is not rehired in one job but
remains as free as before to seek another." Board of
Regents v. Roth, supra at 575; see Russell v, Hodges,
supra at 216; Haron v. Board of Education of City of
New Y o r k , 411 F. Supp. 68, 73 (E.D.N.Y. 1976). "Mere
proof, for example, that his record of non-retention
- 1 8 -
* -
S'
in one job, taken alone, might make him somewhat less
attractive to some other employers would hardly estab
lish the kind of foreclosure of opportunities amounting
to a deprivation of 'liberty.'" Board of Regents v,
Roth, supra at 574 n. 13.
The Supreme Court in Board of Regents v, Roth,
supra at 573, stated that a charge of dishonesty or im
morality could implicate an individual's "liberty" in
terest. In this case Harris by being charged with poor
performance and insubordination has not been deprived
of his "liberty" within the meaning of .Board of Regents
v. Roth. There is no suggestion, as required to invoke
due process protection, that Harris' Tjood name, reputation,
honor, or integrity is at stake because of what the [LIRR]
is doing to him. . . . " Id_. at 573, quoting Wisconsin
v. Constantineau, 400 U.S. 433, 437 (1971); see Bishop v.
Wood, supra at 2079-80. The Supreme Court's notion of
liberty in Board of Regents v. Roth distinguishes between
a stigma of moral turpitude, which infringes the liberty
interest, and a charge of incompetence or inability to
get along with co-wo.rkers which'does not. Stretten v.
Wadsworth Veterans Hospital, 537 F.2d 361, 365-66 (9th
Cir. 1976); Jablon v. Trustees of California State
Colleges, 482 F.2d 997, 1000 (9th Cir. 1973), cert, de
nied , 414 U.S. 1163 (1974). In this case Harris' de
motion for failing to adequately perform his duties as
a n ASM and failing to provide an urgently requested re-
A- 622
- 19-
/-623
port falls into the latter category. The ninth Circuit,
in a case more egregious then the case at bar, found
that charges of "insubordination, incompetence, hos
tility toward authority, and aggressive behavior. . .
do not import serious character defects such as dis
honesty or immorality" and do not warrant a hearing, as
contemplated by Board of Regents v. Roth. Gray v.
Union County Intermediate Education District, 520 F.2d
803, 806 (9th Cir. 1975).
The LlRR in demoting Harris did not attack his
honesty or integrity. The fact that his demotion and
the reasons for it may have a deleterious effect upon
his future employment prospects is unfortunate but the
Supreme Court in Board of Regents v. Roth, supra, at
574 n. 13, specifically noted that this "kind of fore
closure of opportunities" does not give rise to a right
to a hearing. See Jablon v. Trustees of California State
Colleges, supra, 482 F.2d at 1000; cf. Bishop v. Wood,
supra at 2079-2080.
Even if the "liberty" interests of Harris were
infringed', this court's post demotion hearing satisfies
due process requirements. Five days after Harris was dis
missed from his ASM job he moved in this court for an order
to show cause and for a temporary restraining order to be
reinstated in his ASM position. The court offered to com
mence the hearing the following day and because of plain
tiff's unwillingness to proceed denied the temporary re
straining order. The eventual hearing, after extensive deposi-
' A - 624
tions, lasted six days and Harris, represented by counsel,
was accorded full due process. If a stigma had attached
because of his demotion, his entitlement under the Due
Process Clause to a hearing to confront the allegations
and refute the charges against him was satisfied by the
hearing before this court. See Codd v. Velger, 45 U.S.L.W.
4175 (U.S. Feb. 22, 1977). The Supreme Court in Arnett
v_._Ke_nnedy, 416 U.S. 134, 157 (1974), in referring to
a hearing where liberty interests are at stake stated,
" [s]ince the purpose of the hearing in such a case is
to provide the person 'an opportunity to clear his name',
a hearing afforded . . . after the actual dismissal is
a sufficient compliance w7ith the requirements of the
Due Process Clause". See Codd v, Velger, supra at 4175-76;
Morgan v. Fletcher, 518 F.2d 236, 241 (5th Cir. 1975).
Furthermore, in this case the court has found no evidence
of dishonesty or immorality on the part of plaintiff so
that even if he were accused of an act of moral turpitude,
which the court does not find, the post-demotion hearing
before this court has removed any wrongful stigma from
plaintiff s reputation and satisfies due process require
ments.
Conclusion
The court has found that plaintiff was removed
from his ASM position solely for his insubordination, poor
- 2 1
performance and his past employment record. The action
of the LIRR on November 11, 1976 in ordering Harris
to exercise his seniority rights was not the result of
discrimination on account of his race or in retaliation
for his participation in the class action suit. While
this court, were it in the position of the LIRR, may
not have under the circumstances removed -an individual
with Harris' ability, this was an employment decision
for the LIRR to make and, absent proof of discrimination,
this court cannot interfere with it.
The court has further found that plaintiff was
not deprived of his Fourteenth Amendment due process
rights because of the LIRR's failure to grant him a hear
ing.. Therefore, plaintiff's motion for a preliminary
injunction is denied in all respects.
So Ordered.
/V 625
U.S.D.J.
Dated: New York, New York
March 25, 1977.
- 2 2 -
A- 626
FOOTNOTES
1. 42 U.S.C§2000e-5 (g) provides in relevant part:
If the court finds that the respondent has
intentionally engaged in or is intentionally
engaging in an unlawful employment practice
charged in the complaint, the court may en-
■: join the respondent from engaging in such
unlawful employment practice, and order such
affirmative action as may be appropriate,
which may include, but is not limited to,
reinstatement or hiring of employees, with
or without back pay (payable by the employer,
employment agency, or labor organization,
as the case may be, responsible for the un
lawful employment practice), or any other
equitable relief as the court deems approp
riate. . . . No order of the court shall
require the .. . . hiring, reinstatement, or
prbmotion of an individual as an employee,
or the payment to him of any back pay, if
such individual . . . was refused employ
ment or advancement or was suspended or
discharged for any reason other than dis
crimination. on account of race, color, re
ligion, sex, or national, -origin or in viola
tion of section 2000e-3 (a.) of this title.
2. 42 U.S.C. §2000e-2(a) provides:
It shall be an unlawful employment practice for
an employer—
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his com
pensation, terms, conditions, or privileges
of employment, because of such individual’s race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees
or applicants for employment in any way which
would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or na
tional origin.
3. 42 U.S.C. §2000e-3(a) provides in relevant part:
It shall be an unlawful practice for an employer
to discriminate against any of his employees or
applicants for employment, . . . to discriminate
- 2 3 -
4 - 6 2 7
against any individual, . . . because he has
opposed any practice made an unlawful employ
ment practice by this subchapter, or because
he has made a charge, testified, assisted,
or participated xn any manner in an investiga
tion, proceeding, or hearing under this sub
chapter.
4. In the three months prior to November 9, 1976 line
3 was closed ten times for scheduled maintenance. At
least eight of those times Train 82 had to be diverted
to line 1 and five of those times the actual closing
of line 3 occurred after the departure of Train 400
and before the departure of Train 82. Stretching
back over a two year period Train 82 had to be diverted
to line 1 for over one-third of the scheduled maintenance
closings of line 3. Pltf's supplementary memorandum and Pltf's Ex. 10.
5. Employees of A Tower and other Amtrak,employees ex
pressed, in their testimony or on taped conversations
on the night of November 9th, that they had great dif
ficulty working with Harris and that they avoided deal
ing with him and questioned his ability. Def's Exh.O, P.
6. Harris, w’hen told to exercise his seniority rights,
was being told that he was being removed from his manage
ment position and should return to his union job as an
usher wTith the seniority rights he had as a union em
ployee.
7* §ee, e.g. , Garrett v. Mobil Oil Corp,, 531 F.2d 892,
895-96 (8th Cir. 19 76T7~Pottef~~^''GoodwITT Industries,
518 F .2d 864, 865 (6th Cir. 1975); Franklin v. Crosby
Type Co. & Int11. Typo. Union, 411 F. Supp. 1167, 1171-
72 (N.D. Tex. 1976); Christian v. General" Motors Corp.,
341 F. Supp. 1207 (E.D. Mo. 1972), aff’d. without opinion,
475 F .2d 1407 (8th Cir. 1973). ~ ’-----------------------
8. See, e.g., Gillin v. Federal Parser Board Co., Inc.,
479 F .2d 97, 100-01 (2d Cir. 197 3); Pettwav v. American
Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969); EEOC
v. Keller, Philips,. Ross, Inc., 401 F. Supp. 66 (S.D.N.Y.
1975); HcFadden v. Baltimore Steamshio Trade Ass’n., 352
F. Supp. 403, 411 (D. Md. 1973).
9. This court recognizes that while the posture of this
case is a motion for a preliminary injunction in the
context of the class action suit, the six day hearing
closely approximated a full hearing on the merits of
Harris' individual claim respecting his demotion. As
-24
628
such the court is able to
succe: on :hc merit: assess the likelihood of
questions that are fair
ground tor litigation with the view that as to this
specific cl a in
Cfavailable.
Co. , 411 F.2d~9987
littJ e
Pett
additional evidence would be
rav v. American Cast Iron Pine
100 3 (5 th cTr. 19 6 9) .
1 0 - . Although-expressed in the context of a non-class
action proceeding, the analysis of McDonnell Douglas
Green, suora would appear
for injunctive
solely to the
v.
Harris”' c 1 airrT
action relates
surrounding his own demotion
407 F. Supp. 1067, 1070 n. 5
fully applicable to
relief, in that Harris'
individual circumstances
See Predmore v. Allen,
(D. Md. 19 76J7
11. Although not necessary to the court's determination,
it appears that the LIRR as a "subsidiary corporation"
of the Metropolitan Transportation Authority (MTA)
since 1966, is acting under color of state law and is
bound by the requirements of the Fourteenth Amendment.
See Quintero v. Long Island Railroad, 55 Misc.2d 813,
alsoKings Co. 1968);
fansit Authority,
hissincer v
2 86 N . Y . S l2d 74 8 (S . C
Taylor v . New York Cit
665 (2d Clr. 197017
Authority , 274 F. Supp. 4 3 8,"r~441 ~{S . b
MTA is a "public benefit corporation"
State of New York in 1965. Title 11,
Law §§ 1263 and 1266 (McKinney 1970)!
cw York
see
433 F72d
City Transit
N.Y. 1967). The
created by the
Public Authority
. -- ------- -j The LIRR as asubsidiary corporation entirely owned and operated
by the^MTA, enjoys the "privileges, immunities, tax-
exemptions and other exemptions" of the MTA and is
subject to the restrictions and limitations to which
the authority may be subject." Public Authorities
Law §1266(5). Under the circumstances, the LIRR is
acting under color of state law. See Burton v. Wil-
nmigton Parking Authority, 365 U.S. 7157"726 (1961)7
12. In each case, these disciplinary procedures were
without a due process hearing of any kind.
-25-
{■ UNITLD STATES DISTRICT COURT
: southern district of ne w york
A 629
17V(r
fFRANCES JOY CAPERS, EDWARD E. HARRIS,
•k , A;' '̂,Ch indiv^ually and oneialf of all other persons similarly ; situated, . J
P]ainti ffs,
-against-
LONG IS).AND RAILROAD, et al„.
Defendants.
72 Civ. 3168
NOTICE OF APPEAL
Notice is hereby given that Edward E. Harris, one
of the individual plaintiffs above named, hereby appeal-s
;tD the United States Court of Appeals for the Second Circuit1
-from the order denying said plaintiff's motion for a j
^preliminary injunction entered in this action on the 13th day'
:of April, 1977. ' !
; WHITE & CASE !
• - B y ̂ T ;... ,
A Member- of the Firm
i • , Attorneys for Plaintiffs
j - 14 Wall Street
New York, New York 10005
'
,1 Dated: April 14, I9.77
! New York, New York
!
Richard H. StokeS, Esq.
Long Island Railroad Jamaica Station
Jamaica, New. York 11435-
Attorney for Long Island Railroad
Bruce H. Simon, Esq.
Cohen, Weiss & Simon
Attorneys for International Brotherhood of Teamsters605 Third Avenue
New York, New York 10016
Harold A. Ross, Esq.
Richard H. Kraushaar, Esq.
Ross & Kraushaar Co., h . P.A.
Attorneys for Brotherhood of Locomotive Engineers and
Local Lodge S91, -Railroad Yaramasters of America
1548 Northern Ohio Bank Building Cleveland, Ohio 44113
David J. Fleming, Esq.
Paul Reilly, Jr., Esq.
Attorneys for: Brotherhood of Railway, Airline and Steam
ship Clerks, Freight Handlers, Express and Station
Employes i-ts Transportation - Communication Division
and its Sunrise Lodge 190 and Local 0177; Brotherhood
of Locomotive Engineers; International Association of
Machinists and Aerospace Workers and its Local 754;
Brotherhood Railway Carmen of America and its Local
886; Local Lodge 56, Brotherhood of Railway Signalmen
Local 138, Sheet Metal Workers International; Inter
national Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers; Interna
tional Brotherhood of Electrical Workers; Local Lodge
851, Local 851a , Local Lodge 853 and Local Lodge 857,
American Railway Supervisors Association; and Local
Lodge } 91, Railroad Yardmasters of America
1414 Avenue of the Americas 'New York, New York 1QQ19
Donald Lampson, Esq.
Elkind & Lampson, P.c.
Attorneys for United Transportation Onion 122 East 42nd Street
New York, New York
Kevin Quill, Esq.
Attorney for: Local 645, Local 517A and Local 845B,
United Transportation Union; Local 1831, United
Transportation Union; and Local 1934, United
Transportation Union 30-90 23rd Street *
Astoria, New York 11102
A 6 3 1
?
i
j
1 Edward J. Hickey, Jr., Esq.H William j. Hickey, Esq..
| William E. Fredenberger, Esq.
| Mulholland, Hickey £ Lyman
' Attorneys for: International Association of Machinistsand Aerospace Workers and its Local 754; Local Lodge
56, Brotherhood of Railway Signalmen; Brotherhood
Railway Carmen, of America and its Local 886; Local
138, Sheet Metal Workers International; International
Brotherhood of Boilermakers, Blacksmiths, Forgers
and Helpers; International. Brotherhood of Electrical
Workers; and Local Lodge 851, Local 851A, Local Lodge
853 and Local Lodge 857, American Railway Supervisors Association
1125 15th Street, N.W., Suite 40Q Washington, D.C. 20005
James L. Bighsaw, Esq. ~ ,
Highsaw & Mahoney
! Attorneys for Brotherhood of Railway, Airline and Steamship
Clerks, Freight Handlers, Express and Station
Employes its Transportation — Conmunication Division
and -its Sunrise Lodge f90 and Local 0177
! 1015 Eighteenth Street, N.W., Suite 506; Washington, D.C. 20036
Haskell Wolf, Esq.,
Attorney for Local 806,
International Brotherhood c£ Teamsters '600 Old Country Road
Garden City, New York. 11530
Rapaport £ Rapapor t
Attorneys for Plaintiff John Diggs410 Park Avenue
New York, New York 10019
■t