Tuesday, November 28, 2017

Graham v MOA #2: Discrimination And Race Issues

See the Graham v. MOA tab at the top, under the orange blog logo for an introduction to these posts and an index of all the posts.

I've decided to stop trying to find some perfect order to tell this story and just pretend we're having a long conversation.  I'll try to pick a general theme for each post and then just talk about, why it's important to the case, my general thoughts on the topic, and evidence that showed up.  This one is about race.

This case started as a discrimination case.  Jeff Graham is Korean-American and over 40.  Did graders give him failing scores on the more subjective exams because of his national heritage or age?  How do you get inside of people’s heads to prove that?
There were no overt anti-Korean remarks made.  The only thing that could be linked to his Korean
Turnout Image from here
heritage was an incident over a ‘turnout.’

A turnout is the heavy suit that protects fire fighters.  Jeff’s had reached its expiration date. (Yes, they have them, I learned in the courtroom.)  It needed replacement.  He was sent a new one that didn’t fit.  The second one they sent him was old and beat up and had on the back the name Chon, another Korean fire fighter.  It was his old, used turnout.
Jeff’s chief at Station 10 was irate.  They just sent him the old coat of another Korean.  (Note that for later when I say people claimed no one knew he was Korean.)  Captain Albrecht saw this as a racial joke and sent the turnout back and tried to find out who had sent it.    There were no records of who sent it, though turnouts are expensive and normally such information is kept.

Jeff’s station captain is a white fire fighter, but he’s sensitive to racial issues because his wife is black.  This fact came out in testimony in court.  Captain Albrecht was asked if he had heard racial jokes.  The Muni (Municipality of Anchorage) attorney objected to the direction of attorney Jeff Jarvi's question.  The judge wanted to hear what Albrecht would testify without the jury present.  The jury was given a break.

Jeff Graham’s attorney, Jeff Jarvi, asked if Captain Albrecht had ever heard racist jokes.  Yes he had.  Then he told one such joke and the situation.

It was Thanksgiving. Fire fighters work on holidays and  he was carving the turkey in the station.  Jim Stewart, a fire fighter who raised a damaging, unproven rumor about Jeff Graham during the oral peer review, said, as the turkey was being carved, “He likes dark meat.  He really, really likes dark meat.”  It was at that point that Albrecht revealed that his wife was black and that Stewart’s tone of voice made it clear that his comment had strong racial overtones.

You'll probably see that both of these are very subtle forms of racism.  They're deniable.  Just a coincidence that he got Chon's turnout.  Dark meat?  I was talking about the leg and thigh, he really likes that.

Monica Elkinton, the Muni attorney, objected on the grounds that just because someone was prejudiced against blacks, didn’t mean they were prejudiced against Koreans.  The judge ruled that telling this story before the jury would be prejudicial at this point.

The resolution was that when Stewart testified (he was a Muni witness because he was a grader in Graham's peer review process),  Jarvi could ask him if he ever told racist jokes.  If he said no, then Captain Albrecht could be brought back to court to tell this story.  In the end, the Muni never called Jim Stewart as a witness, so this never got before the jury.

During the voir dire - the selection, or some might say the weeding out of jurors - Monica Elkinton, the Muni attorney, asked the jury if anyone had ever heard stereotypes about Koreans.  One juror raised his hand and preceded to talk about how people say Koreans are shrewd businessmen always trying to get the best deal.  Elkinton removed him from the jury.  It's significant because the rumor about Jeff Graham that was introduced at his peer review was precisely about that sort of behavior.  We'll get to that later.  But the jury got to hear all this.

A Fire fighter is the lowest rank in the AFD.  Next comes engineer.  You have to promote to engineer to get to any higher positions.
At another point, Chad Richardson, who was in charge of the training and testing for the promotion process from fire fighter to engineer, testified.  He was subpoenaed by the plaintiff’s attorney Jeff Jarvi.  He was asked about an incident at the opening day of the 2010 Academy.

Fire fighters were being welcomed to the Academy.  At one point, a female fire fighter objected to Chad Richardson’s constant use of the term “fireman.’  She asked him to use the gender neutral term ‘fire fighter.’  Richardson explained his reaction.  He testified that he’d been telling a story about firemen, not firewomen. There are firemen and fire woman. There were only men in the story.  He said he told the woman something like,  “You’re a fire woman.  I was referring to fire men.  So I should say firemen.”  Jennifer Henzler later testified that he was actually addressing the whole group and used the term repeatedly.  This was, the welcoming part of the training, the part that was supposed to make everyone comfortable.  He was making her more and more uncomfortable. (Note these 'little' incidents that create a hostile work environment for women.)  In this case too, the Muni attorney, Monica Elkinton argued that discrimination against women didn’t mean he would also be prejudiced against Koreans.

The jury, however, was 13 women and one man. (Two were alternates in case someone had to leave.  The final 12 jurors weren’t determined until after the trial was over.)  The jury heard the hostility toward women in Richardson’s voice and his disingenuous explanation about why he didn’t need to stop saying fireman instead of fire fighter. Or his "I don't remember" when asked if he had apologized later.

Another incident came up near the end of the trial.  Early on, when Jeff Graham was still working as a mechanic for the fire department, he wanted to be "on the line," that is, to become a fire fighter, even though this would mean an initial significant drop in pay.  But he figured he'd be able to promote to engineer.  He’d heard that another department employee, Mark Montfore, who also wanted to become a fire fighter, had been able to apply to be a fire fighter.  So Graham asked Monfore how he had gotten into the next fire fighter academy.  Here’s Monfore’s testimony from my court notes, which are rough, but capture the key points.

Elkinton:  When did you learn he was Korean?
Monfore:  Not sure.  We had a conversation about me transferring and he was doing that too.  He asked some questions.  In that conversation,  in that conversation he said if they don’t transfer me I’m going to play the Native card.
Elkinton:  Sounds like from that statement, sounds like you thought he was Alaska native.  What did you take that to mean?
Monfore: Don’t know if he was insinuating some sort of minority route to get in.

Jeff Graham was brought back to testify at the very end of the trial, specially to address this.

Jarvi:  Mr. Graham do you recall a conversation when you were both trying to switch to AFD fire fighter in 2006?  Was there snow on ground?
Graham:  No snow.  Summer maybe.
Jarvi:  Where was it?
Graham:  Outside AFD maintenance shop. [Where Graham worked at the time.]
Jarvi:  Who initiated the conversation?
Graham:  I did.  I saw him outside, heard he was transferring, I was trying to transfer forever.  He said to take a couple of courses.  “You can take classes or play the Native card.”

The Muni attorney had a follow up question then:

Monica Elkinton: Did you say I’m not Alaska Native.
Graham:  No

So, here he is, the white fire fighter stating that Jeff Graham, a Korean-Amerian, said the way he was going to get into the academy was to play the “Native card.”

Jeff Graham’s memory of the event had Monfore as the one who used the term “Native card.”

We all remember things differently.  This incident happened 11 years before the trial.  But to me, the idea that a Korean-American would tell a white man he didn’t know well that he was going to use the Native card is not believable.  Race card is a term whites invented to dismiss claims of racial discrimination. They use it to dismiss charges that they personally or the system in general are discriminatory.   "He wasn't discriminated against, he's just playing the race card."  It's not something a person of color would normally say to a white person.

To make it even more questionable, Jeff Graham is Korean-American, not Native.  If he had responded that way, he more likely would have said, “race card’ not ‘native card.’

[UPDATE June 4, 2018 - I just came across this quote from a Media Diversified review of Race Baiting For Dummies that supports my contention here:
"A close examination of the usage of the phrase reveals that it is applied almost exclusively to people with non-white skin pigmentation in general and against black people in particular. If one conducts a simple experiment by typing “race card” into a Google browser and then clicks on the image tab, the result will reveal the faces of black people inscribed on various forms of cards with comments such as, “Race Card: For the morally & intellectually bankrupt” or “God gave you your skin colour, so why not use it to your advantage.” Anytime black people open their mouth to speak about racial injustice, they are silenced with five words that have stood the test of time: 'Stop Playing The Race Card.'”]

And why wouldn’t Jeff Graham correct Monfore and tell him he was Korean?  People of color are tired of explaining themselves to whites, and even to other people of color.  This is especially true of people of mixed race who often don’t quite fit in with either group.  I started to really appreciate this point after watching the short film called "What Are You Anyway?" created by a film maker at 2008 Anchorage International Film Festival. It's about how one Japanese-Canadian got sick of people asking him, “So what are you anyway?”

Fortunately, the jury was very diverse racially and I’m sure they understood all this.

Monica Elkinton, the Muni Attorney, only had a few key arguments in her opening statement to the jury.  One was that Jeff Graham failed the exam because he hadn’t studied enough.  (Note:  he passed the written and practical parts of the test  that were more engineer related well.  He failed the much more subjective oral peer review by one point.)  Her other point was that he couldn’t have been discriminated against because people didn’t know he was Korean.  I don’t know if she actually believed this or whether this was simply a legal strategy. I would assume the latter, but I'm not sure. She pushed throughout the trial to reject any evidence of discrimination that wasn’t directed at Koreans.

At Jeff Graham’s deposition, she started out essentially asking him “How Korean are you?”  She asked about his parents (his mother is a Korean who married an American solider serving in Korea.)  Do you understand Korean?  Do you speak Korean?  Do you eat Korean food?  Do you cook Korean food?  Do you have Korean friends?  Do you go to Korean church?

I was dumbfounded by this line of questioning.  Where was she going?  Was she going to try to prove he wasn’t really Korean?  Or Korean enough?  It was kind of how women who have been assaulted are asked their sexual history in order to prove they couldn't have been raped because they'd had sex before.

Missing was any acknowledgment that being different racially from the norm,  plays a big role in being discriminated against.  It doesn’t matter if they know he’s Korean, or even Asian.  Most discrimination in Alaska is against Natives anyway, so if people thought he was Native that would be grounds enough.

Jeff Graham’s attorney, Jeff Jarvi asked fire fighters, who said they didn’t know he was Korean, whether they thought he was white.  They hemmed and hawed.  He’d follow up, did you think he was the same race as you and me?  One answered that he thought he was Italian because he had good hair.

Why does this matter?  Because Anchorage has been identified as having some of the most diverse neighborhoods in the US.  But the Anchorage Fire Department is VERY white.  The numbers that the Deputy Fire Chief calculated in her head at the deposition come to 88% white.  Though that did not include Hispanics.  So lets say it's about 85% white.  When a Korean failed the promotion exam because of his score on a highly subjective oral exam (after passing the more objective and engineer related sections) someone should have asked, why is this happening.  If the fire department wanted its workforce to look more like the city's population, they should have called Jeff in and asked him 'how do we get more people of color into the fire department?'  Did I mention that the three lowest scores on this test were Koreans?  No, I guess not, but we'll get into that when I talk about the exams in a later post.

I would note here that there is a way to avoid discrimination in exams and scoring exams.  The merit system has been around for over 100 years and it's designed to find the most qualified candidates for the job.  It eliminates as much as possible, subjective exams that allow the bias (conscious or unconscious) of graders from slipping in.  It helps minimize any kind of bias so that you don't have to prove that someone was thinking "I will score him lower because he's Korean."  People can find lots of ways to get around it, but when they do, they leave a trail.

I'll get to the merit system in my next post.  Thanks for getting this far.

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