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June 23, 1998

JAMES THORNTON, et al. Plaintiffs,

The opinion of the court was delivered by: SULLIVAN


 Plaintiffs bring this action alleging employment discrimination by defendant, National Railroad Passenger Corporation ("Amtrak"). Plaintiffs in this case currently consist of nine Amtrak employees, one individual who applied but was not hired for a position at Amtrak, and the Pennsylvania Federation of the Brotherhood of Maintenance of Way Employees ("BMWE"), an unincorporated association that represents Amtrak employees in labor-management relations. *fn1" Plaintiffs raise three claims in their complaint: violations of 42 U.S.C. § 2000d ("Title VI"), violations of 42 U.S.C. § 2000e ("Title VII"), and violations of 42 U.S.C. § 1981.

 Defendant has moved to dismiss Plaintiffs' claims under Title VI and Title VII. Upon consideration of defendant's motion to dismiss, plaintiffs' opposition, defendant's reply, and plaintiffs' surreply, and the oral argument heard on June 10, 1998, the Court will GRANT defendant's motion to dismiss as to plaintiffs' Title VI claims but DENY defendant's motion to dismiss as to plaintiffs' Title VII claims.

 Title VI

 Under Title VI, no person shall be "subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. However, the statute also states that:

Nothing contained in this subchapter shall be construed to authorize action . . . with respect to any employment practice of any employer, . . . except where a primary objective of the Federal financial assistance is to provide employment.

 42 U.S.C. § 2000d-3.

 Defendant argues that plaintiffs' claims must be dismissed because employment is not the "primary objective" of Amtrak's federal funding. See Temengil v. Trust Territory of Pac. Islands, 881 F.2d 647, 653 (9th Cir. 1983) (rejecting Title VI claim brought by employees of Trust Territories of the Pacific Islands where plaintiffs argued that primary objective of the Trust Territory government could not be carried out without hiring employees); Ward v. Massachusetts Bay Transportation Authority, 550 F. Supp. 1310, 1312 (D. Mass. 1982) (holding that primary objective of federal funds to Massachusetts Bay Transportation Authority was not creation of jobs). *fn2"

 In the case of Amtrak, defendant argues that the stated purpose for the funds is not to provide employment, but rather:

to provide intercity and commuter rail passenger transportation that completely develops the potential for modern rail transportation to meet the intercity and commuter rail transportation needs of the United States.

 49 U.S.C. § 24101.

 Plaintiffs, on the other hand, argue that preserving the employment of workers in the passenger railroad industry is a "primary purpose" of the funding. Furthermore, plaintiffs argue that the "intended beneficiaries" test should apply rather than the "primary purpose" test. Plaintiffs rely on Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S. Ct. 1248, 79 L. Ed. 2d 568 (1984) to argue that they have standing to assert Title VI claims because they are "intended beneficiaries of federal aid" even where the funding is not primarily intended to provide employment. Id. at 628 & n.4. Darrone, however, involved a suit under the Rehabilitation Act, rather than Title VI, and the Supreme Court held only that it would not incorporate the "primary objective" requirement of Title VI into the Rehabilitation Act. The Court, however, did not eliminate the "primary objective" limitation for Title VI actions.

 Plaintiffs also argue that because employees are required to meet the primary objective of providing transportation, then providing employment must also be a primary objective. Courts, however, have rejected this expansive reading of § 2000d-3. See Temengil, 881 F.2d at 653 ("under this extended logic, few programs that employed people would be protected"); Burks v. City of Philadelphia, 950 F. Supp. 678, 683 (E.D. Pa. 1991) ("discriminatory employment practices can give rise to Title VI liability only when a primary objective of the federal money that Congress extends to the program or activity is to provide employment."); see also Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616, 627 n.6, 94 L. Ed. 2d 615, 107 S. Ct. 1442 (1987) (noting Congress's concern that Title VI not subsume Title VII by making any employer who receives federal financial assistance liable under Title VI).

 Finally, even assuming that "primary" or "intended" beneficiaries of the federal funding have standing to bring a Title VI case, plaintiffs nevertheless fail to show that employees are "primary" or "intended" beneficiaries of federal funding to Amtrak. Plaintiffs rely on cases such as Fobbs v. Holy Cross Health System Corp., 29 F.3d 1439 (9th Cir. 1994) and Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1235 n.16 (7th Cir. 1980), which refer to intended beneficiaries of federal financial assistance. However, even those courts failed to conclude that the plaintiffs in those cases were "primary" or "intended" beneficiaries of federal funds. See Fobbs, 29 F.3d at 1447 ("Dr. Fobbs is essentially only an incidental beneficiary of programs designed to benefit his patients, and is trying to manipulate his status as an incidental beneficiary into that of a primary or intended beneficiary."); cf. Caulfield v. Board of Educ. of the City of New York, 583 F.2d ...

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