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Friday, June 19, 2009
A Different Kind of Discrimination Case
By Joline Gutierrez Krueger
Journal Staff Writer
Few people in Carlsbad knew what had happened to Jackie Akins. It's not the sort of racially grotesque thing most folks like to talk about, not the sort of thing most folks like to think happens in their town.
It happens somewhere else, they like to think.
Akins was a married man in his 30s when it began, a good and humble man by all accounts. He worked for the city of Carlsbad from 1992 to 2002, mostly in the maintenance department until, his attorney says, he couldn't take it anymore.
He is also a black man in a city where blacks are as rare as desert snowstorms, making up little more than 2 percent of the population.
It's what the jerks he worked with and for did that is our concern and that of a recent state Court of Appeals ruling.
Akins' crew was predominantly Hispanic, though that made little difference to him or anyone else until several of them began joking around in Spanish.
That was OK, but the joking turned into comments, and the comments turned into conversations. Then orders and instructions were spoken in Spanish so that Akins was the odd man out, walled out by words, unable to hablar español.
It felt as if he were a stranger in a strange land. But this was America.
"He took it for a long time," says his attorney, Tom Martin Jr. "Jackie is one of those nice people who tries to see the best in others. He didn't understand why these folks were doing this."
Akins asked co-workers and his supervisors to speak English so he could understand what he was supposed to be working on.
But, according to court documents, they refused.
Then came the epithets. According to a Court of Appeals opinion published in the State Bar Bulletin, co-workers began calling Akins "pinche mayate," a malevolent racial slur that's roughly the equivalent of the F word modifying the N word.
That, Akins knew.
All the while, Akins could not understand what he had done to tick off his co-workers other than to be black.
Akins complained to the president of his union, the United Steelworkers of America, AFL-CIO Local 187, the collective bargaining representative for Akins' crew.
The response, according to court documents, was stunning.
"You're the wrong color," the president sneered. "Maybe you need to learn to speak Spanish."
And that was finally enough.
The words had been as intimidating to Akins as a burning cross.
"It was very emotionally devastating for him," Martin says. "It just destroyed him inside."
Akins filed a lawsuit in March 2004 against Carlsbad city officials and the union, claiming they had breached their duty of fair representation and had caused intentional infliction of emotion distress.
The city was later dismissed from the lawsuit. Martin says that, to their credit, city officials had stepped in once they learned of Akins' situation.
"They dragged those union officials in and chewed them up one side and down the other," he says.
They had no power, however, to fire the union folks.
The union, for its part, argued that Akins' allegations were simply untrue, overdramatized.
Jurors thought otherwise.
In June 2006, they awarded Akins $1,661.60 in actual damages and $30,000 in punitive damages — not a lot, but jurors had been constrained by the previous judge's rulings on what they could consider when deciding on a monetary amount.
The union appealed, arguing in part that it was improper to award punitive damages, no matter how meager.
Akins appealed, too, saying the trial judge erred when he hadn't allowed Akins to present evidence on intentionally inflicted emotional distress, which might have upped the punitive damages.
The appellate court ruled against both and affirmed the jury awards as is, and called the union's behavior against Akins "particularly reprehensible."
Of course, it doesn't end there. Both sides will again argue their positions before the state Supreme Court. When that will happen is anyone's guess.
Akins won't be waiting around for that. He moved to Kansas a couple of years ago.
"He reached a point where he said, 'Tom, I just can't take it anymore around here. I just need to move,' " Martin says. "He is an exceedingly sensitive man. He still breaks down when he talks about this."
Even if the high court rules in Akins' favor, the awards will remain the same. And maybe that's OK.
"My opinion about the verdict is that, while it's not the largest I've ever seen, it's sufficiently large that it's gotten people's attention," Martin says. "That's what we wanted to do — to make sure this type of thing never happens again."
Only the case made nary a ripple in the local media or elsewhere.
Until now.
UpFront is a daily front-page opinion column. You can reach Joline at 823-3603, jkrueger@abqjournal.com or follow her on Twitter @jolinegkg.
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