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Burley v. National Passenger Rail Corp.

United States District Court, D. Columbia.

March 31, 2014

GREG BURLEY, Plaintiff,
v.
NATIONAL PASSENGER RAIL CORPORATION, Defendant

Page 62

For GREG BURLEY, Plaintiff: John F. Karl , Jr., LEAD ATTORNEY, MCDONALD & KARL, Washington, DC; Kristen Grim Hughes, McLean, VA.

For NATIONAL PASSENGER RAIL CORP., doing business as AMTRAK, Defendant: Andrew G. Sakallaris, Jonathan C. Fritts, Kaiser H. Chowdhry, LEAD ATTORNEYS, MORGAN, LEWIS & BOCKIUS LLP.

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MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge.

Plaintiff Greg Burley brings this lawsuit alleging that defendant National Passenger Rail Corporation (" Amtrak" ) discriminated against him on the basis of his race when it investigated an accident in which he was involved, determined that he was more culpable than a co-worker, and terminated his employment. Mr. Burley alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the District of Columbia Human Rights Act, D.C. Code § 2-1401.01, et seq. Pending before the Court is defendant's motion for summary judgment. Upon consideration of the motion, the responses and replies thereto, the applicable law, and the entire record, the Court GRANTS defendant's motion.

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I. BACKGROUND

A. Factual Background [1]

1. Mr. Burley's Work as an Amtrak Engineer.

In 2005, Greg Burley was accepted into Amtrak's engineer training program and ultimately became a fully certified engineer. Defendant's Statement of Material Facts (" Def.'s SMF" ) ¶ 1. Mr. Burley was assigned to work in Ivy City, where Amtrak's maintenance facilities for the Washington, D.C. terminal are located. Id. ¶ ¶ 1-2. His job was to work with a conductor and an assistant conductor to move train cars around Ivy City. Id. ¶ 3.

Mr. Burley's role was governed by rules promulgated by the Northeast Operating Rules Advisory Committee (" NORAC Rules" ). Id. ¶ 7. As the engineer of the group, he conducted all physical operation of the train engine, id. ¶ ¶ 4-5, and Rule 956 made him " responsible for the observance of all signals and for controlling movements accordingly." NORAC Rules, Ex. F to Def.'s Mot. for Summ. J. (" Def.'s Mot." ), ECF No. 30-8 at 9. Pursuant to Rule 951, meanwhile, the conductor remained " in charge . . . as to the general management of the train," id., and was responsible for directing Mr. Burley's actions. See Plaintiff's Statement of Material Facts (" Pl.'s SMF" ) ¶ ¶ 4, 70-71.

Pursuant to Rule 16, engineers must not allow their train to pass a Blue Signal--a sign designed to notify engineers that track workers may be present. See Def.'s SMF ¶ 10; NORAC Rules, Ex. F. to Def.'s Mot., ECF No. 30-8 at 3-5. A Blue Signal takes the form of a blue flag or sign and may also display a blue light, but engineers must stop for a Blue Signal even if it is not accompanied by a blue light. Id. ¶ 11.[2] In Ivy City, Blue Signals are often paired with permanently installed derailers, devices that force an engine off of the track when they are applied. Id. ¶ ¶ 14, 16. Derailers are used in situations where failing to stop the engine may threaten the safety of track workers. Id. ¶ 15. Rule 104(d) requires engineers to know the locations of these permanent derailers, and bans engineers from operating over an applied derailer. Id. ¶ 17.

While in Ivy City, engineers are also required to operate at " restricted speed," which Rule 80 defines as a speed that permits " stopping within one half the range of vision short of . . . [d]erails set in the derailing position." NORAC Rules, Ex. F to Def.'s Mot., ECF No. 30-8 at 6; see also Def.'s SMF ¶ 18. Relatedly, an engineer who is unsure whether the track ahead contains a Blue Signal or derailer must stop the engine and check before proceeding. Id. ¶ 19.

Finally, under Rule 116, when an engineer is not located on the " leading end" of the engine's movement, " a crew member must be stationed on the leading end of the movement to observe conditions ahead" and " [i]f signals from the crew member cannot be received by the Engineer, the movement must be stopped immediately." NORAC Rules, Ex. 12 to Pl.'s

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Opp. to Mot. for Summ. J (" Pl.'s Opp." ), ECF No. 40-4 at 2.

2. The Accident and the Investigation.

On October 20, 2007, Mr. Burley was working with Conductor Jerry Ebersole and Assistant Conductor Lawrence Mahalak. Def.'s SMF ¶ 20. The crew was directed to pick up a train car that had been undergoing maintenance on Track 7 in the Service and Inspection Building. Id. ¶ 22. As their engine approached Track 7, Mr. Ebersole instructed Mr. Mahalak to exit the engine and begin to prepare the train car they were picking up. Id. ¶ 23.

Mr. Burley then received radio notification that the derailers on Track 7 were " down" and that he could proceed. Pl.'s SMF ¶ 76. As the engine proceeded, Mr. Ebersole exited to the side opposite Mr. Burley, without alerting him. Def.'s SMF ¶ 24; Pl.'s SMF ¶ 81. Believing that Mr. Ebersole was on the front of the engine, Mr. Burley proceeded along Track 7. Pl.'s SMF ¶ ¶ 80-81. He noticed that the blue lights on the exterior of the Service and Inspection Building, which should be illuminated when a Blue Signal is displayed on a particular track, were not on and he saw neither a Blue Signal nor an applied derailer on the track. Id. ¶ ¶ 78-79. Mr. Burley's engine nonetheless ran over an applied derailer and derailed. Def.'s SMF ¶ 25.

Soon after the accident, Leslie David Smith, the Assistant Superintendent for Terminal Services, arrived at the scene to investigate the accident. Id. ¶ 26.[3] Mr. Smith, who is Caucasian, assembled an Incident Committee, which also included Bernard Campbell and William Lighty, who are African-American. Id. ¶ ¶ 27-28; Pl.'s SMF ¶ 28. Although there were multiple committee members, Mr. Smith took the lead in investigating the accident and writing the Committee's Report. See Pl.'s SMF ¶ ¶ 27, 91. Mr. Smith inspected the accident site soon after the derailment occurred and noticed that the derailer was applied, and that a Blue Signal and blue light were located underneath the derailed engine. See Def.'s SMF ¶ ¶ 29-30. Mr. Smith concluded from this that the Blue Signal was displayed on the track at the time of the derailment and that the engine had passed through the Blue Signal and over the derailer. Id. ¶ 31. Mr. Burley does not dispute Mr. Smith's characterization of what he found after the accident, but notes that Mr. Smith did not personally witness the display beforehand. See Pl.'s SMF ¶ ¶ 29-30, 84.

Mr. Smith also interviewed each of the crew members. Pl.'s SMF ¶ 83. During his interview of Mr. Ebersole, Mr. Smith learned that Mr. Ebersole had exited the engine prior to the derailment. See Ebersole Interview Tr., Ex. 21 to Pl.'s Opp., ECF No. 40-6 at 5:3-16, 7:15-22.

To memorialize his findings, Mr. Smith composed an Incident Report, which catalogued Mr. Mahalak's departure " with the approval of Ebersole and the knowledge of Burley." Incident Report, Ex. 2 to Sherlock Decl., ECF No. 30-7 at 17. The Report found that Mr. Ebersole " by his estimation approximately 150 feet north of the point of derailment, dismounted to the east side while the locomotive was moving at slow speed" and that Mr. Ebersole " did not advise Burley of the position of the derail." Id. It also stated that Mr. Ebersole's intent was " to walk ahead of the locomotive to the [Service and Inspection Building]." Id. The Report noted that Mr.

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Burley continued down Track 7 and " took no action to stop the locomotive or otherwise positively determine the position of the derail." Id. at 18.

The Report concluded that the cause of the accident was that " [t]he Engineer failed to stop for an applied blue-flag derail" and Mr. Ebersole and Mr. Mahalak " were not in position to assist the Engineer." Id. at 16, 18. The Report also stated that the incident was being treated " as decertifiable based on anticipated damage and the Restricted Speed and Blue Flag violations." Id. at 18.

Based on these findings, Amtrak brought formal charges against Mr. Burley and Mr. Ebersole. Mr. Burley was charged with violating NORAC Rules 16 (passing a Blue Signal), 80 (exceeding restricted speed), 104 (passing an applied derailer), and 956 (general duties of an engineer). See Burley Charges, Ex. 3 to Sherlock Decl., ECF No. 30-7 at 22-23. Mr. Ebersole was also charged with violating Rules 16 and 104, as well as Rule 941, which holds conductors responsible for the conduct of everyone on the train, and an internal Amtrak rule that bars employees from exiting a moving engine. See Ebersole Charges, Ex. 1 to Pl.'s Opp., ECF No. 42-1 at 1-2.

3. Amtrak Waives Mr. Ebersole's Charges But Not Mr. Burley's.

Mr. Burley and Mr. Ebersole were permitted to request that Amtrak waive the charges against them in exchange for admitting to the conduct and accepting punishment. Def.'s SMF ¶ ¶ 39-40, 46. Amtrak may accept or reject a waiver request at its discretion, Def.'s SMF ¶ 41, and it is forbidden from keeping any " formal transcript, statement, or recording" of waiver proceedings involving engineers. See Collective Bargaining Agreement, Ex. 1 to Sherlock Decl., ECF No. 30-7 at 10.[4] Ultimately, Amtrak denied Mr. Burley's request for a ...


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