Nightmare Alabama bias suit has life of its own

By DREW JUBERA
The Atlanta Journal-Constitution
04-29-03
MONTGOMERY -- Five governors over nearly two
decades have vowed to resolve it.

It remains the longest, costliest, most confounding
lawsuit pending against the state of Alabama.
 
 
The lawsuit fills 159 volumes in the U.S. District Court
clerk's office, plus a 14,000-square-foot warehouse
leased by plaintiffs' lawyers in Birmingham.

Reynolds v. Alabama Department of Transportation has
cost the state government more than $250 million --
enough money, the Transportation Department's
director said, to repave "every square inch of interstate
in Alabama and have enough left to pave over I-20
again."

As the 18-year-old racial discrimination case heads
toward its third decade, it has acquired a mythic, head-scratching reputation. One local
judge compared it to "Alice in Wonderland."

"I don't think it'll ever be resolved," said original plaintiff Johnny Reynolds, who filed the suit
in 1985 when he felt he was being denied promotions because he is black. He has yet to
see a dime from the effort even though a $54 million class-action settlement was reached
nine years ago.

"Nobody wants to be wrong," Reynolds said, "and nobody wants to compromise."

But like the fictional Jarndyce v. Jarndyce in the Charles Dickens classic "Bleak House" -- a
lawsuit so protracted and unwieldy no two lawyers could "talk about it for five minutes
without coming to a total disagreement" -- the Reynolds case represents the culture that
fosters it as much as the legal issues in dispute.

To the administration of first-term Gov. Bob Riley, a Republican who pledged in his January
inauguration speech to close the case by year's end, the case represents an obstructive and
greedy legal culture.

Riley contends the U.S. District Court in Montgomery has taken "years" to rule on motions.
He accuses plaintiffs' lawyers, paid $300 an hour by the state, of prolonging the case with
endless objections for their own monetary advantage.

Said Joe McInnes, the governor's recently appointed transportation director: "Every time we
deliver a check to them, Ed McMahon should show up ringing a bell and saying, 'You just
won the sweepstakes.' "

But to many of the 2,500 black plaintiffs and their lawyers, the case embodies Alabama's
reluctance to purge its legacy of entrenched racism.

The original lawsuit was filed during the final term of segregationist Gov. George Wallace,
and Transportation Department posts are still filled with employees from that era. Reynolds
and Bob Wiggins, lead attorney for the plaintiffs, claim some holdovers have sabotaged
efforts to get the state to comply with a 1994 consent decree that requires the department to
meet standards in hiring, training and promoting minorities.

"The [state] breaks every agreement they enter," said Wiggins. "They've been held in
contempt repeatedly, and they then breach the contempt agreements. It's a never-ending
zigzag course, from one administration to another."

That's how close the two sides are after 18 years.

Got his job in 1979

Johnny Reynolds, who is now 46, applied for a job at the Transportation Department in 1979.

The department had long been a white enclave where good jobs were passed down and
along to family members. But a court injunction forced the Alabama DOT to hire minorities,
and Reynolds and a trickle of other African-Americans became engineers' assistants.

"I didn't know what I was walking into," recalled Reynolds, then a recent graduate of
Alabama State University, a historically black college in Montgomery. "When I walked
through the door, I was greeted by the Ku Klux Klan. Dead rats were put on my drafting
table. I'd find white powder around my desk; they called it 'nigger powder.'

"But I was hungry," he said. "I needed a job and you had to sacrifice."

Reynolds put up with a series of lousy assignments until he saw sons and daughters of
white employees, with less experience and education than he had, promoted ahead of him.
In May 1985, he filed suit.

While it's not unusual for a case like this to take years to conclude, the lawsuit appeared to
be over when a settlement was reached in 1994. But that's when the legal wrangling really
got started in this case.

The settlement included 20 clauses to redress the Transportation Department's problems
with minority hiring and promotion.

The state also agreed to pay the plaintiffs' lawyers. Their fees were expected to total
$10,000 a year for six years, to monitor the state's compliance. But the fees have ballooned
to $18 million, Wiggins said, as the state was found in contempt, and back-pay issues grew
more complicated.

"Our litigation is a reaction to their noncompliance; if they'd simply complied, that would be
the end of it," said Wiggins. As the case dragged on, it gained a life of its own. About 700
white workers became part of the suit, claiming the state's noncompliance with the consent
decree held up their promotions and raises. They've been awarded $8.4 million, which none
of them has seen yet.

That money is being held in escrow, along with the black plaintiffs' award -- earning interest
that will go to lawyers for expenses.

The only money paid out so far to plaintiffs has been about $4 million in back pay awarded
to a few black engineering school graduates denied employment in the '80s -- and who never
worked for the DOT.

Summed up McInnes: "It's a bureaucratic legal labyrinth."

10 new law firms hired

There is hope for a conclusion. Presiding U.S. District Judge Myron Thompson ordered
Alabama to deliver a schedule that puts it in compliance by Dec. 31. Governor Riley has
hired 10 law firms, each of whom will concentrate on a specific case area.

"It's a multiheaded snake, and we just have to cut off all the heads, one at a time," said Dan
Morris, DOT assistant director, who oversees the case virtually full time.

McInnes admits that resolving the suit by year's end is a stretch, but says the department
has no choice but to conclude it soon.

Too many roads have gone unrepaired; too many projects have been shelved, he said.
McInnes said litigation has kept hundreds of positions unfilled, forcing the department to
contract out 80 percent of its work at more than twice the cost of doing it in-house.

The court is fining the Transportation Department $63,500 a week. The unresolved lawsuit's
total monthly cost to the department: $500,000.

"We'll work through this," McInnes promised.

Wiggins is inclined to agree. "The state says it's going to take it seriously this time and get
this over with," he said. "I'm taking them at their word."

He's doubtful, however, about a strategy that adds 10 lawyers, fearing that step will
complicate matters rather than streamline them. "But hope springs eternal," Wiggins said.

Reynolds, now a department district engineer in Union Springs, 40 miles southeast of
Montgomery, has had three heart attacks while the lawsuit has ground on. He recalls a
former department director once told him: "Either I'll be dead, or you'll be dead, before you
ever see a penny." The ex-official is still alive, and Reynolds still hasn't seen a cent.

"I just been through so much stress with this department and this lawsuit," Reyolds said.
But he doesn't regret suing the state, which could award him between $100,000 and $1
million. He believes the Alabama Department of Transportation would still be "back in the
'40s" in its approach to minorities if not for his action.

Now about 30 percent of the department's workers are black, with about 5 percent in
management positions -- an improvement, Reynolds said, but still not good enough.

Reynolds thinks there's only one way to resolve the case.

"I'd lock everybody up in a room, put the issues on the table and tell them they're not getting
out until it's settled," he said. "They'd come in on a Monday morning, and by Friday evening,
it'd be over."