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Chambliss v. National Railroad Passenger Corp.

February 20, 2007

JERRY K. CHAMBLISS, PLAINTIFF,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Pending before the Court is Defendants' Motion for Summary Judgment. Plaintiff brings claims pursuant to both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that Defendants National Railroad Passenger Corporation ("Amtrak") and Steven S. Snyder, one of Plaintiff's supervisors at Amtrak, discriminated against Plaintiff on the basis of race (Count One), Compl. ¶¶ 15-20, and that Amtrak retaliated against Plaintiff by terminating him "because he spoke up for his civil rights," (Count Two) id. ¶¶ 21-23. The claim within Count Two of Plaintiff's Complaint that Amtrak retaliated against Plaintiff by refusing to settle his workers' compensation claim (raised in a separate lawsuit) unless he waived all civil rights, see id., is now moot. In addition, in his Complaint, Plaintiff asserts claims of assault and battery (Count Three), "intentional interference with economic relationship" (Count Four), and intentional infliction of emotional distress (Count Five) solely against Defendant Snyder. Defendants have moved for summary judgment on all five counts of Plaintiff's Complaint. Upon a searching consideration of the filings currently before the Court, the attached exhibits, the relevant case law, and the entire record herein, the Court shall grant Defendant's Motion for Summary Judgment in its entirety.

I. BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h) (formerly Rule 7.1(h)). The local rules for summary judgment "assist[] the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garret & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes. . . . The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980). "[A] district court should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material fact." Id. (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)).

The Court further notes that Plaintiff has already been given an extra chance to comply with Local Civil Rule 56.1. On August 24, 2006, the Court found that Plaintiff's original "Statement of Material Facts" failed to admit, deny, or deny-in-part/admit-in-part each statement set out by Defendants in corresponding numbered paragraphs and support each response through citations to the record. Instead, the Court found, Plaintiff's "Statement of Material Facts" did not respond to the Defendants' Statement in any organized way. Chambliss v. Nat'l R.R. Passenger Corp., et al., Civil Action No. 05-2490, Order (Aug. 24, 2006). Advising Plaintiff that the purpose of Rule 56.1 is to "place the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record," Jackson, 101 F.3d at 151, the Court struck Plaintiff's Opposition in its entirety and, in the interest of justice, gave Plaintiff another opportunity to file a Statement of Material Facts in Dispute/Not in Dispute that complied fully with Local Civil Rule 56.1.

Despite the Court's clear admonition that if Plaintiff failed to file his revised Opposition in conformance with Local Civil Rule 56.1, it would be stricken and declared conceded without further notice, Plaintiff's more recent Statement of Genuine Issues Necessary to be Litigated (hereinafter "Plaintiff's Statement") still fails to comply with Local Civil Rule 56.1. As Defendants point out in their Reply Memorandum, Defendants' Statement of Material Facts Not in Dispute (hereinafter "Defendants' Statement") includes 33 numbered paragraphs. However, rather than responding to Defendants' Statement by admitting or denying each paragraph, as he was specifically instructed to do in this Court's June 5, 2006 Scheduling and Procedures Order, Plaintiff has provided 18 broad headings, which do not correspond to the paragraphs of Defendants' Statement. See Chambliss v. Nat'l R.R. Passenger Corp., Civil Action No. 05-2490, Scheduling and Procedures Order (Jun. 5, 2006) at 1-2. Each of Plaintiff's broad headings is followed by a number of lengthy bullet-pointed paragraphs containing both factual and legal arguments including, in some instances, citations to cases. See, e.g., Pl's Stmt ¶ 6. As a result, the Court is unable to parse from Plaintiff's excess and unresponsive verbiage those specific facts that Plaintiff considers in dispute. See Gibson v. Office of the Architect of the Capitol, Civ. No. 00-2424(CKK), 2002 WL 32713321, at *1 n.1 (D.D.C. Nov. 19, 2002). Finally, Plaintiff does not provide precise citations to the portions of the record on which he relies. Instead, Plaintiff follows each set of bullet-pointed paragraphs with a long string citation to multiple documents that do not indicate any correlation between specific factual assertions and portions of record evidence. Most egregiously, each of Plaintiff's string citations includes a general citation to the 227-page transcript of Plaintiff's deposition, without any pincite to suggest which portions of the 227-page transcript Plaintiff deems significant. As Plaintiff thus fails completely to provide the Court with record support for his assertions, the Court is entirely unable to credit them.

In addition, Plaintiff's failure to comply with Local Civil Rule 56.1 has significantly prejudiced Defendants, who have been required to file four motions and reply memoranda in response to Plaintiff's filings, and who have faced the unnecessarily difficult task of meaningfully responding to Plaintiff's improper filings. See Defs' Reply at 2-4.

Pursuant to Local Civil Rule 56.1, in resolving the present summary judgment motion, this Court "assumes that facts identified by the moving party in the statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1; 7(h). Because Plaintiff's Statement is both opaque and fails to comply with Local Civil Rule 56.1 the Court has therefore treated all facts alleged in Defendants' Statement as conceded. Despite Plaintiff's abject failure to comply with his obligations under Local Civil Rule 56.1 and this Court's orders, in the interest of justice, the Court has nevertheless undertaken a review of the record evidence that Plaintiff submitted in connection with his Opposition in order to determine whether that evidence raises genuine issues of fact. The Court shall first outline the facts identified by Defendants in their Statement, and then proceed to indicate those additional facts that the Court was able to glean from its independent review of the record in this matter. The Court notes that, because Plaintiff has not complied with his obligations under Local Civil Rule 56.1, he is left with the Court's interpretation of the record evidence.

A. Facts Identified by Defendants

Plaintiff Jerry K. Chambliss was first employed by Amtrak in 1989. Defs' Stmt. ¶ 1; Pls' Ex. 2A (5/24/06 Chambliss Dep.) at 9:9-10. Over the course of his employment with Amtrak, Plaintiff was cited for violations of Amtrak's attendance policy and insubordination. Defs' Stmt. ¶ 2; Defs' Ex. B (Chambliss Disciplinary Records, introduced as Exs. 1-12 at 5/24/06 Chambliss Dep.).*fn1 During the time period relevant to Plaintiff's Complaint, Plaintiff was supervised by Defendant Steven S. Snyder at least one day a week. Defs' Stmt. ¶ 3; Pls' Ex. 2A (5/24/06 Chambliss Dep.) at 82:1-3.

On May 10, 2004, Defendant Snyder threw a safety pamphlet at Plaintiff. Defs' Stmt ¶ 4; Pls' Ex. 2A (5/24/06 Chambliss Dep.) at 70:13-71:9.*fn2 The safety pamphlet weighed approximately four (4) ounces. Defs' Stmt. ¶ 7; Defs' Ex. G (1/20/06 Nat'l Med'n Bd. Op., introduced as Ex. 22 at 5/24/06 Chambliss Dep.) at 3. The pamphlet struck Plaintiff in the face, but did not move his glasses. Defs' Stmt. ¶ 8; Pls' Ex. 2A (5/24/06 Chambliss Dep.) at 88:15-19. Plaintiff did not report any injuries on the date of the incident, but instead continued working and completed his entire assigned shift. Defs' Stmt. ¶¶ 9-10; Defs' Ex. F (5/10/04 Chambliss Stmt.); Defs' Ex. D (Stmt of C.M. Bello, General Foreman, stating that during a meeting regarding the incident on 5/10/04, Plaintiff "never made mention of any injury he received from the incident and did not appear to be injured in any way."); Defs' Ex. E (5/10/04 Police Report) at 3 (stating "no injuries reported); Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 95:13-16; 96:19-21). The next morning, Plaintiff discovered that his nose was sore. Defs' Stmt. ¶ 11; Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 97:16-98:10.

Plaintiff was out from work from May 11, 2004 through May 17, 2004. Defs' Stmt. ¶ 12; Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 97:14-16; 99:7-16). Plaintiff did not report any physical injury to an Amtrak official during this time period. Defs' Stmt ¶ 13; Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 138:13-141:9. Plaintiff did not file an accident report until June 14, 2004. Defs' Stmt ¶ 14; Defs' Ex. H (6/14/04 Employee Personal Statement, introduced as Ex. 18 at 5/24/06 Chambliss Dep.); Defs' Ex. I (6/14/04 Employee Injury/Illness Report, introduced as Ex. 19 at 5/24/06 Chambliss Dep.). However, Amtrak's Standards of Excellence require that employees "[i]mmediately report to your supervisor all injuries and illnesses that occur . . . while you are performing your duties or on Amtrak property." Defs' Stmt. ¶ 20; Defs' Ex. J (7/6/06 Decl. of Christine Turnblacer) at Ex. II (Amtrak Standards of Excellence), page 5. Moreover, Plaintiff was aware of Amtrak's policy, and had complied with this policy with respect to previous workplace injuries. Defs' Stmt. ¶ 15; Defs' Ex. C (8/12/04 Decision notifying Plaintiff of termination) at 2; Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 107:18-108:16.

Amtrak initiated an investigation into Plaintiff's conduct and determined that Plaintiff had committed three significant violations of Amtrak policy. Defs' Stmt ¶ 16; Defs' Ex. C (8/12/04 Decision). First, Amtrak determined that Plaintiff had six occurrences of absence or tardiness in a ninety day period, in violation of Amtrak's National Systems Attendance Policy. Defs' Stmt ¶ 18; Defs' Ex. C (8/12/04 Decision) at 1-2; Defs' Ex. B at 2-3 (6/28/04 Memo to J. Allione, Mgr, Amtrak High Speed Rail indicating that Plaintiff did not have permission to be absent from work 6/17/04-6/20/04); Def's Ex. B at 4 (1/30/04 e-mail from M. Wiggins to J. Allione stating that Plaintiff was denied time off from work 6/17/04-6/20-04). Second, Amtrak determined that Plaintiff had failed to timely report the physical injury he claimed to have suffered as a result of the May 10, 2004 incident. Defs' Stmt. ¶ 19; Defs' Ex. C (8/12/04 Decision) at 3. Finally, Amtrak determined that Plaintiff had failed to deal honestly and accurately with his supervisors regarding the May 10, 2004 incident and his claimed injuries, in violation of Amtrak policy which requires employees to always tell the truth. Defs' Stmt ¶ 21; Defs' Ex. C (8/12/04 Decision) at 2, 4; Defs' Ex. J (7/6/06 Turnblacer Decl.) Ex. II (Amtrak Standards of Excellence) at 3.

Based on this investigation, Amtrak terminated Plaintiff's employment, effective August 12, 2004. Defs' Stmt. ¶ 22; Defs' Ex. C (8/12/04 Decision) at 4. Plaintiff filed a grievance regarding his termination, which was arbitrated in accordance with the applicable collective bargaining agreement. Defs' Stmt. ¶ 23; Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 128:15-129:4. On January 20, 2006, the arbitration panel issued an order reinstating Plaintiff without back pay. Defs' Stmt. ¶ 24; Defs' Ex. G (1/20/06 Nat'l Med'n Bd. Op.). In relevant part, the panels's opinion stated:

Upon careful consideration of the record, the Board concludes that the Claimant violated Carrier's well established policy governing the reporting of industrial injuries. We further conclude that his explanations for that failure are unpersuasive. Had he complied with those rules, all questions and concerns of both parties may have been able to be addressed. Thus his absence commencing May 11 was unauthorized. Swirling around that judgment, however, is the Board's serious concern as to whether Carrier has established a case for its principal charge: intent to defraud.

The time Claimant missed on this occasion was a violation of Carrier's National System Attendance Policy. Standing alone, however, attendance issues would not in our judgment warrant dismissal. Termination thus rests chiefly upon the charge of falsifying an injury. Notwithstanding the suspicious circumstantial evidence, in our view, that evidence is inconclusive. The record speaks to a situation in which the Claimant allowed himself to become emotionally distraught as he brooded over the pamphlet tossing incident, ultimately convincing himself that it was deliberate, that he had been struck a serious blow, and that he had been singled out for that mistreatment. It is, of course, a mark and measure of adulthood to modify the impulses that sometimes surge up, to exercise judgment, to organize behavior and decision-making and to learn and adhere to the rules of everyday life. In becoming emotionally flustered and retiring from his job obligations, Claimant simply failed to meet his employer's reasonable standards.

Defs' Stmt. ¶ 25; Ex. G (1/20/06 Nat'l Med'n Bd. Op.) at 3-4.*fn3 Amtrak reinstated Plaintiff and Plaintiff returned to work at the end of 2005. Defs' Stmt. ¶ 26; Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 196:20-199:9.

In June 2005, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). Defs' Stmt. ¶ 27; Defs' Ex. K (6/15/05 Charge of Discrim., introduced as Ex. 14 at 5/24/06 Chambliss Dep.). Plaintiff's Charge was filed in Baltimore and sent to Washington, D.C., such that Plaintiff was unaware of the exact date when he filed his charge or whether it was also filed with the D.C. Office of Human Rights. Defs' Stmt. ¶¶ 28-31; Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 57:19-59:3. The EEOC investigated Plaintiff's Charge of Discrimination and issued a Notice of Right to Sue, dated September 30, 2005. Defs' Stmt. ¶ 32; Defs' Ex. L (9/30/05 Notice of Right to Sue, introduced as Ex. 23 at 5/24/06 Chambliss Dep.). On December 30, 2005, Plaintiff filed a Complaint in this Court, naming as Defendants Amtrak and Steven S. Snyder. Defs' Stmt. ¶ 33; Compl. Plaintiff's Complaint includes five counts: (1) race discrimination under Title VII and 42 U.S.C. § 1981 (against both defendants); (2) retaliation under Title VII and 42 U.S.C. § 1981 (against Amtrak only); (3) assault and battery (against Snyder only); (4) intentional interference with economic relationship (against Snyder only); and (5) intentional infliction of emotional distress (against Snyder only). Defs' Stmt. ¶ 33; Compl.

B. Additional Facts Identified by the Court

The Court reiterates that the following facts are based on the Court's independent review of the documentary evidence and deposition testimony provided by Plaintiff and that Plaintiff has not identified particular facts, supported by precise citations to record evidence, in order to rebut Defendants' Statement. As Plaintiff has failed to comply with his obligations under Local Civil Rule 56.1, he is left with the Court's interpretation of the record evidence. In addition, the Court notes that some of the facts described below are provided as background to Defendants' sparse allegations of facts, and not necessarily because they raise genuine questions of fact as to material issues.

1. Facts Relating to the May 10, 2004 Incident

Plaintiff Chambliss is a black man of African-American descent, Defendant Snyder is a white man. Defs' Ex. K (6/15/05 Charge of Discrimination). On May 10, 2004, Plaintiff was sitting at a table in the Amtrak High Speed Rail lunchroom. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 70:13-19; Defs' Ex. F (Witness Stmts re: 5/10/04 incident) at 2 (B. Vullo Stmt.) and 3 (S. Snyder Stmt.). Defendant Snyder tossed a used napkin into a trash can near Plaintiff and Plaintiff asked Defendant Snyder whether he was trying to hit Plaintiff. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 71:1-6; Defs' Ex. F at 1 (Chambliss Stmt.) and 3 (Snyder Stmt.). Thereafter, Defendant Snyder threw the safety pamphlet at Plaintiff and hit him in the nose. Defendant Snyder maintained that he did not intend to hit Plaintiff with the pamphlet and that his action was a joke. Defs' Ex. F at 3-4 (Snyder Stmt.); Pl's Ex. 12 (Portions of Arb. Tr.) at 116:6-17 (Snyder Test.).*fn4 A number of other Amtrak employees were present in the lunchroom at the time of the incident, including some who saw the pamphlet thrown and others who did not see the pamphlet thrown but rather heard it hit Plaintiff. Defs' Ex. F at 2 (B. Vullo Stmt.) and 6 (D. Washington Stmt.); Pl's Ex. 12 (Portions of Arb. Tr.) at 209:23-212:21 (P. Bunch Test.). Plaintiff was very upset by the incident and his distress was noted by employees who saw him on the day of the incident. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 86:20-87:8; Pl's Ex. 12 (Portions of Arb. Tr.) at 196:10-197:2; Defs' Ex. D (C.M. Bello Stmt.); Pl's Ex. 11 (9/27/05 Bello Dep.) at 39:11-20; 43:4-44:16.

Approximately one hour after the incident, Plaintiff spoke with his union representative, Robert Mascetti, about the incident and asked Mr. Mascetti to speak with Plaintiff's manager, Dino Giurfa about the incident. Pl's Ex. 12 (Portions of Arb. Tr.) at 193:14-24 (Mascetti Test.). Mr. Mascetti did so, and Mr. Giurfa indicated that he would investigate the situation. Id. at 194:7-21; 174:14-21 (Giurfa Test.). Mr. Giurfa referred the investigation of the incident to General Foreman Christopher Bello. Id. at 173:14-174:4. Around noon on May 10, 2004, Plaintiff and his union representative met with Mr. Bello to discuss the incident. Mr. Bello did not perceive any physical injury to Plaintiff during this meeting. Defs' Ex. D (C.M. Bello Stmt.); Pl's Ex. 11 (9/27/05 Bello Dep.) at 34:166-35:19; 36:15-17. In addition, there is no evidence that Plaintiff reported any physical injury to Mr. Bello. Defs' Ex. D (C.M. Bello Stmt.) ("Mr. Chambliss never made mention of any injury he received from the incident and did not appear to be injured in any way."). After meeting with Plaintiff and Mr. Mascetti, Mr. Bello interviewed Defendant Snyder, who told Mr. Bello that he intended the incident as a joke. Defs' Ex. D (C.M. Bello Stmt.); Pl's Ex. 11 (9/27/05 Bello Dep.) at 45:3-16. Mr. Bello also spoke with the employees who observed the incident and had them write down statements of what they observed. Id. at 47:2-12; Defs' Ex. F.

Based on his investigation, Mr. Bello "determined that Mr. Snyder's actions did not warrant his immediate removal from service and [felt] Mr. Snyder intend [sic] no malice," despite the fact that there was "no question that he used poor judgment." Defs' Ex. D (C.M. Bello Stmt.). Mr. Bello informed Defendant Snyder "that his action was in poor judgment especially for a supervisor and that it could also be considered horseplay which is a violation of Amtrak's standards of excellence regarding conduct." Id. Mr. Bello further informed Defendant Snyder that he "would have to discuss the entire matter with [Mr. Giurfa] to determine the appropriate actions or possible discipline necessary to address this matter." Id. The next week, Defendant Snyder was given a two (2) day suspension for violating Amtrak's safety policy, which was "to be served according to operational commitments" (held in abeyance). Pl's Ex. 5 (Snyder Personnel Docs.) at 3-4 (5/17/04 Notice of Intent to Impose Discipline Meeting and Waiver).

After Plaintiff met with Mr. Bello on May 10, 2004, he called Amtrak police to report the incident. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 92:17-96:18. Plaintiff did not report any injuries to the police officer who investigated the incident. Id.; Defs' Ex. E (5/10/04 Amtrak Police Report) at 3. At his deposition, Plaintiff testified that when he arrived home after completing his shift on May 10, 2004, his head was hurting and he called Amtrak's mental health line and spoke to a counselor. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 97:4-8. According to Plaintiff, the counselor determined that Plaintiff was under too much stress to go to work the next day and told Plaintiff to "mark off" from work. Id. at 97:7-11.*fn5 On the morning of May 11, 2004, Plaintiff called Amtrak's "mark-off number" to report that he would not be coming to work and reported that he was stressed. Id. at 138:18-139:9. Later on May 11, 2004, Plaintiff saw Dr. Jeffrey D. Gaber, a private physician not associated with Amtrak. Dr. Gaber's consultation note indicates that Plaintiff had a "headache disorder and nasal pain," as well as anxiety, although no loss of consciousness, problems breathing, or nosebleed. Pl's Ex. 3 at 1 (Dr. Gaber 5/11/04 Consultation Note). Dr. Gaber recommended to Plaintiff that he try a medication, Fioricet, for his headaches and stated that he did not consider Plaintiff "fit for duty until May 17, 2004." Id. at 1-2.*fn6 According to Plaintiff, the Amtrak mental health line also referred Plaintiff to a Dr. Hollander, whom Plaintiff continued to see through August 2004 for mental health issues relating to the May 10, 2004 incident. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 112:15-113:13.

During the period that he was out from work, Plaintiff contacted Mr. Mascetti and told Mr. Mascetti that he had been to the doctor. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 139:14-140:10. In turn, on May 13, 2004, Mr. Mascetti had a discussion with Mr. Giurfa about Plaintiff in which Mr. Mascetti indicated that Plaintiff had filed a police report. Pl's Ex. 12 (Portions of Arb. Tr.) at 172:4-23 (Giurfa Test.); 197:16-21 (Mascetti Test.). In connection with the arbitration in this matter, Mr. Mascetti testified that during the May 13, 2004 conversation, Mr. Giurfa asked whether Plaintiff was reporting an injury and "said at that time that [Mr. Mascetti] was not Jerry Chambliss, that [Mr. Mascetti] was not reporting an injury." Id. at 197:22-198:5 (Mascetti Test.).

When Plaintiff returned to work on May 17, 2004, Mr. Giurfa scheduled a meeting with Plaintiff and Defendant Snyder to "resolve this issue." Id. at 146:12-20 (Giurfa Test.). Plaintiff insisted that a union representative be present at the meeting, Mr. Giurfa objected to a union representative being present because the "meeting was very informal between two employees and [he] didn't want any undue influence," and the meeting was cancelled. Id. at 146:19-147:20; Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 100:6-20. The next day, May 18, 2004, Plaintiff met with his supervisor, Michael McLean, and told Mr. McLean that he was trying to report a physical injury but that management would not speak with him. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 101:18-102:2; Pl's Ex. 12 (Portions of Arb. Tr.) at 247:16-249:2 (McLean Test.). In connection with the arbitration in this matter Mr. McLean testified that, during their May 18, 2004 conversation, Plaintiff mentioned that he was injured but that Mr. McLean did not think Plaintiff was reporting a physical injury to him. Id. at 249:3-254:22.

Based on the foregoing, the Court concludes that Amtrak employees may have been aware that Plaintiff was upset by the May 10, 2004 incident; however, Plaintiff has proffered no evidence demonstrating that he reported his physical injury to any representative of Amtrak during the period that he was out from work, May 11, 2004 to May 17, 2004.

2. Events Leading to Plaintiff's Filing of His Complaint

Plaintiff testified during his deposition that, at some point during May or June 2004, he contacted an attorney to file a claim under the Family and Medical Leave Act. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 103:12-19.*fn7 Thereafter, on June 8, 2004, Mr. Giurfa and Joseph Allione, Manager of Amtrak High Speed Rail, called Plaintiff into an office and told him that if he was claiming a physical injury, he had to provide doctor's statements and complete certain forms. Id. at 104:2-18. On June 9, 2004, Plaintiff contacted Amtrak's Dispute Resolution Office ("DRO") regarding the May 10, 2004 incident. Pl's Ex. 1 at 3-7 (6/22/04 Case Manager Intake Form completed by G. Atkinson). "While [Plaintiff] did not say that he believed the incident was racially motivated, he told the DRO that he believed if Mr. Snyder had been African American he would have been taken out of service immediately and asked to leave the property. [Plaintiff] also said that Mr. Snyder had had problems with African American employees in the past." Pl's Ex. 1 at 12 (6/22/04 Memo from G. Atkinson, Intake Coordinator to T. Campbell). In addition, handwritten notes apparently written by Ms. Atkinson during Plaintiff's June 9, 2004 telephone call to the DRO indicate that Plaintiff complained that Mr. Giurfa "did nothing" and that Defendant Snyder had not been punished for hitting Plaintiff. Pl's Ex. 1 at 1-2 (Handwritten notes dated 6/9). Thereafter, Plaintiff filed a physical injury report on June 14, 2006. Defs' Ex. H (6/14/04 Employee Personal Statement); Defs' Ex. I (6/14/04 Employee Injury/Illness Report).

It appears that following Plaintiff's complaint to the DRO, Ms. Atkinson spoke with Mr. Giurfa. Pl's Ex. 1 at 8-9 (Handwritten notes dated 6/14). During this conversation, Mr. Giurfa told Ms. Atkinson that Amtrak Labor Relations determined that the incident did not constitute workplace violence because Defendant Snyder thought it was a joke, that he planned to charge Plaintiff with late reporting of an injury, false reporting of an injury, and "accidentproneness," and that Plaintiff was represented by an attorney in connection with his FMLA claim. Id. Upon learning that Plaintiff was represented by an attorney, the DRO transferred Plaintiff's complaint to Amtrak's EEO Compliance Unit. Pl's Ex. 1 at 12 (6/22/04 Memo from Atkinson to Campbell). Amtrak advised Plaintiff of this transfer on June 22, 2004, and also advised Plaintiffs of his right to file a complaint with the federal EEOC and/or state or local agencies, notwithstanding his DRO complaint. Pl's Ex. 1 at 13-14 (6/22/04 Letter from G. Atkinson to Plaintiff).

Plaintiff was notified of the charges against him in late June or early July 2004, and a number of meetings occurred regarding the charges. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 115:15-119:1. The Amtrak Hearing Officer, Mr. D'Alessandro, completed his disciplinary investigation into the charges against Plaintiff on July 29, 2004. Defs' Ex. C (8/12/04 Decision). Plaintiff's union representative "was present throughout the entire investigations [sic], and was afforded the opportunity to question company witnesses and to review documentation proposed for inclusion in the record." Id. at 2.*fn8 As described above, the Hearing Officer issued his Decision on August 12, 2004 and Amtrak terminated Plaintiff's employment effective that date. Id. at 3-4.

It appears that during the course of the relevant meetings and the arbitration in this matter, Plaintiff challenged various aspects of Amtrak's three charges against him. Plaintiff continues to challenge the validity of Amtrak's charges in his Opposition to Defendants' Motion for Summary Judgment, and the Court shall therefore briefly address the facts relevant to each charge.

a. Absenteeism

Plaintiff's disciplinary records indicate that between May 1, 2002 and April 21, 2003, Plaintiff received counseling, a verbal warning, a written warning, and three discipline investigations for excessive absenteeism. See Defs' Ex. B at 5 (4/21/03 Notice of Intent to Impose Discipline Meeting); 7 (4/11/03 Memo to D. Giurfa, Asst. Gen. Mgr Amtrak High Speed Rail, noting previous actions taken regarding Plaintiff's absenteeism). In addition, prior to the May 10, 2004 incident, Plaintiff received a three-day suspension for violating Amtrak's National Systems Attendance Policy, which was held in abeyance for six months. See Defs' Ex. B at 6 (4/28/03 Waiver signed by Chambliss).

In connection with Plaintiff's termination, Amtrak determined that Plaintiff was absent from or late to work six times within a ninety-day period. See Defs' Ex. C (8/12/04 Decision) at 2. Four of these dates (May 11-13, 2004 and May 16, 2004) are during the period of time when Plaintiff was out from work following the May 10, 2004 incident. Id. Plaintiff contends that these dates should not be considered absences because he was injured; however, as noted above, Plaintiff did not report any physical injury to an Amtrak representative during the period that he was out from work. In addition, with respect to Plaintiff's charged absence between June 17 and June 20, 2004, Plaintiff contends that he gave his managers notice that he would be out from work, that an issue arose as to whether his supervisor could grant Plaintiff permission to be out from work, and that without a clear resolution of the issue, Plaintiff took the time off. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 121:7-24:9. However, an e-mail proffered by both parties indicates that Plaintiff was told that he had no vacation time available and would not be given permission to take the days off unless he offered a legitimate reason for doing so. Defs' Ex. B at 4 (6/30/04 e-mail from M. Wiggins to J. Allione). As such, it appears that Plaintiff was not excused from work for the period from June 17 to June 20, 2004.

Plaintiff also contends that he should not have been counted as 22 minutes late on June 13, 2004, asserting that he was late because the bridge he had to cross to get to work was out. Pl's Ex. 2A (5/24/06 Chambliss Dep.) at 123:6-125:2. Plaintiff further asserts that another manager excused several white employees' tardiness for the same reason, while Plaintiff's tardiness was not excused. Id.; Pl's Ex. 2 (Chambliss Personnel Docs.) at 2 (4/8/04 e-mail from J. Casson to J. Cabral noting that several employees were late due to the bridge closure and that their time should be adjusted as such). However, Plaintiff provides no evidence that his manager excused any other employees' tardiness, white or black, ...


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