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Railway Workers Sue, Citing Discrimination and Low Pay
By COLIN MOYNIHANFEB. 14, 2018
For more than a year, Mario Pesantez said, he was told to report to work by climbing over a tall, chain-link fence that separates the streets of Glendale, Queens, from a yard used by his employer, the New York & Atlantic Railway.
Once inside he joined a group of Mexican, Ecuadorean and Dominican men who said they routinely spent 12- to 14-hour shifts working on sections of the Long Island Rail Road that New York & Atlantic had leased to transport freight. The men said they righted derailed trains, maintained switches and cut thick railroad ties, earning much less than white co-workers while being denied safety equipment and training.
Whenever federal or state rail inspectors showed up, they said, supervisors ordered those who had climbed the fence to hide, sometimes yelling that “federales” had arrived.
“We felt embarrassed,” Mr. Pesantez said, speaking through a Spanish-language translator as he sat at a table with a dozen other former New York & Atlantic workers. “We felt ashamed, we felt humiliated.”
On Wednesday, 18 men who said they worked for New York & Atlantic between 2010 and 2016 filed a lawsuit in State Supreme Court in Manhattan accusing the railway, its parent company, Anacostia Rail Holdings Company, and three officials of discriminating against and underpaying employees who they believed to be immigrants. In addition, the lawsuit said, the company obstructed a train crash investigation by keeping the men away from federal inspectors.
The suit seeks class-action certification and a declaration that the defendants violated New York City’s Human Rights Law, New York State labor laws and the Federal Employers Liability Act. It also asks for minimum wage and overtime pay, damages for physical injuries and pain and suffering, and a court order forbidding repetition of the alleged actions.
Michael D. Hall, a lawyer for New York & Atlantic, provided a statement from the railway denying the lawsuit’s “unsubstantiated, uncorroborated, and unsupported allegations” and maintaining the company has followed all federal, state and local regulations.
“These allegations are baseless and without merit,” the statement said, adding that while contractors and employees maintained rail lines and equipment “the individuals making these employment claims were never N.Y.A.R. employees, and as such, their claims are directed at the wrong party.”
Kristina Mazzocchi, a lawyer for the workers, rejected the argument that her clients were not employees. They worked full time and were paid weekly, in cash, she said. Their labor benefited New York & Atlantic, she said, and they were hired, fired, disciplined and directed by railway supervisors.
“They were treated as if they were disposable,” she added. “They were subjected to deplorable health and safety conditions.”
The suit raises questions about practices at New York & Atlantic, which has been criticized in the past by federal investigators and elected officials over its record of complying with regulations.
The railway began operating in 1997 after the L.I.R.R. decided to privatize freight operations on its lines, which are part of the country’s busiest commuter railroad system. Today New York & Atlantic transports 30,000 carloads a year of construction material, food, waste and other items over about 270 miles of tracks that stretch from Bay Ridge, Brooklyn, to Montauk, on the eastern tip of Long Island.
A 20-year contract that the railway, then known as the Southern Empire State Railroad Company, signed in 1996 called for payments totaling $12.7 million over 20 years to the L.I.R.R. plus fees tied to track usage and switch maintenance. The freight railway agreed to maintain the tracks it uses and said that all “employees, agents and contractors” would adhere to laws and regulations.
The agreement was to be renewed for 10 years at a cost of $15.7 million provided that New York & Atlantic was not in “material breach” of the contract and maintained a safety record equal to or better than the national industry average for the three years before a notice to renew.
L.I.R.R. officials said they received figures from the Association of American Railroads, a trade group, showing that New York & Atlantic’s safety record was better than average from 2011 to 2013, the three years before the railway sent a renewal notice. But the railway came under scrutiny in 2015 after a train went through three crossings before the gates that block vehicles had been lowered, then plowed into a tractor-trailer in Queens, sparking a fire and causing minor injuries.
Federal investigators later issued a report concluding that New York & Atlantic had allowed engineers to operate locomotives without proper documentation that they were qualified under federal regulations. During the inquiry, the railway failed to produce requested records that regulations say should be “readily provided,” according to the report by the Federal Railroad Administration.
y the time the report was issued, New York & Atlantic’s contract had been renewed. In 2016, Thomas F. Prendergast, then the chairman of the Metropolitan Transportation Authority, which oversees the L.I.R.R., said the contract could be reconsidered in light of the federal findings, according to Newsday, but it has remained in effect. Still, L.I.R.R. officials said they have insisted that New York & Atlantic implement a review of its safety practices and compliance with regulations.
A spokesman for the L.I.R.R. declined to comment on the lawsuit.
The workers’ lawsuit claims New York & Atlantic had a two-tiered system of full-time employees: nonimmigrants and others whom the lawsuit described as being “of indigenous or Afro Dominican ethnicity” and “perceived immigrants.”
The second group, the lawsuit said, was hired from Home Depot parking lots and told to enter the rail yard by scaling a fence instead of through a gate. Those workers, the suit added, were given a segregated and substandard changing area, subjected to racial slurs and denied protective equipment and training while working for unlawfully low pay in dangerous conditions.
Workers said that they installed and repaired rails, used chain saws to remove trees felled by storms and sprayed herbicides and pesticides. Several workers said they were not instructed how to properly use tools. Some said they watched YouTube videos to learn how to perform certain tasks.
Workers were sometimes hurt, suffering a traumatic brain injury, impaired vision and rashes, the lawsuit said. The suit also accused New York & Atlantic of failing to report on-the-job injuries to the Federal Railroad Administration as required.
The workers said that they were paid $120 for shifts that sometimes lasted 24 hours or longer. On multiple occasions, the lawsuit said, workers were forced to hide from federal inspectors among trees, in trucks or in a locked trailer as supervisors shouted “the federales are here, run!”
Two workers, Antonio Adame and Edison Gutierrez, said that though they received no meaningful instruction, New York & Atlantic supervisors issued them credentials stating that they were “qualified.”
Mr. Adame said that he witnessed one co-worker slice into his own leg with a chain saw and another lose fingers while using a piece of equipment to pull a misplaced railroad spike. Two workers, Armando Gutierrez and Franklin Lopez, said that supervisors ordered them to squeeze beneath derailed cars as part of an effort to place them back onto the rails.
“We had to crawl under the train,” Mr. Gutierrez said. “I was afraid it would crush me.”