Burley v. National Passenger Rail Corp.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

________________________________
)
GREG BURLEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1222 (EGS)
)
NATIONAL PASSENGER RAIL )
CORPORATION, )
)
Defendant. )
________________________________)

MEMORANDUM OPINION

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.
I. BACKGROUND

A. Factual Background1

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

1
Portions of plaintiff’s statement of material facts lack any
citation to the record. When possible, the Court has relied on
the record to support these allegations, but it cannot accept
allegations that remain unsupported. See SEC v. Banner Fund
Int’l, 211 F.3d 602, 616 (D.C. Cir. 2000) (“the district court
is under no obligation to sift through the record and should
instead deem as admitted the moving party’s facts that are
uncontroverted by the nonmoving party’s [statement of material
facts].”) (quotation marks and alterations omitted).
2
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

2
Plaintiff asserts that a Blue Signal “must” include a blue
light but provides no support for his claim. See Pl.’s SMF ¶ 11.
3
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 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

4
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

3
When Mr. Smith arrived at the scene, Mr. Ebersole told him
“well, he was up on the engine by himself. It’s his fault.”
Burley Dep., Ex. 14 to Pl.’s Opp., ECF No. 37-1 at 236:19-20.
Mr. Smith appears not to have responded. See id. at 237:4-7.
5
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. 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

6
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

7
Agreement, Ex. 1 to Sherlock Decl., ECF No. 30-7 at 10.4

Ultimately, Amtrak denied Mr. Burley’s request for a waiver,

Def.’s SMF ¶ 42, but granted Mr. Ebersole’s request and

suspended him for fifteen days. Id. ¶ 46; Pl.’s SMF ¶ 104.

There is only limited evidence regarding the process by which

Mr. Burley’s request was denied. The record supports a finding

that one or more of Daryl Pesce, General Superintendent of the

Mid-Atlantic Division; Michael Sherlock, Acting General

Superintendent of the Mid-Atlantic Division; and Mr. Smith may

have been involved in the decision to deny it. See Def.’s SMF ¶¶

43-44 & n.8; Pl.’s SMF ¶ 43A. Amtrak officials, however, do not

have a specific memory of the request. Def.’s SMF ¶ 44; Pl.’s

SMF ¶ 106. While not direct evidence of why the request was

denied, Mr. Pesce testified that he would not have granted the

request because of the seriousness of the charges and because

plaintiff’s denial that a Blue Signal was properly displayed

made an investigation necessary. Def.’s SMF ¶ 45; see also

Sherlock Decl., Ex. E to Def.’s Mot., ECF No. 30-7 ¶ 15.

There is less information regarding Mr. Ebersole’s request.

Neither Mr. Sherlock nor Mr. Pesce were involved in granting it.

4
Mr. Burley asserts that there may be informal records, Pl.’s
SMF ¶ 41, but neither supports nor explains this contention and
there is no indication that such documents exist. He also
requests a spoliation inference on this issue “[a]s set forth in
Plaintiff’s Opposition,” id. ¶ 41 n.2, but that brief mentions
spoliation only in connection with an unrelated issue. See Pl.’s
Opp. at 40.
8
Pl.’s SMF ¶ 46. Plaintiff claims that Mr. Smith was involved,

id. ¶¶ 46, 107, but the evidence he cites is the deposition

testimony of an individual who repeatedly stated that he did not

know whether Mr. Smith was involved. See Pingley Dep., Ex. 20 to

Pl.’s Opp., ECF No. 39-5 at 11:18-20, 18:18-21. The only

evidence bearing on why Mr. Ebersole’s request may have been

granted are statements by Mr. Pesce and Mr. Sherlock that Mr.

Ebersole’s offense was less serious because he was not on the

engine when the derailment occurred. Def.’s SMF ¶ 46.

4. The Disciplinary Process.

Once Mr. Burley’s waiver request was denied, Amtrak held a

formal disciplinary hearing. See Def.’s SMF ¶ 48. Mr. Burley’s

union representative appeared at this hearing, questioned

Amtrak’s witnesses, and presented evidence and argument. Id. ¶

49. During the hearing, Mr. Smith testified that he found a Blue

Signal and blue light on the tracks underneath the derailed

engine and that Mr. Ebersole exited the engine prior to the

derailment. See id. Mr. Burley testified that Amtrak lacked

proof that a Blue Signal was properly displayed or that a blue

light was illuminated at the time of the accident. Id. ¶ 50. The

Hearing Officer, relying heavily on Mr. Smith’s testimony, found

that “the evidence in this case clearly shows that the banner

was erected (found under the locomotive) and the Blinking Blue

Light Warning Protection/Stop Signal (found under Eng. 558 at

9
the derail location) was displayed as required by the rule.” Ex.

K to Def.’s Mot. for Summ. J., ECF No. 30-13 at 4. The Hearing

Officer concluded that “the charges have been proven.” Id.

Mr. Pesce was then tasked with imposing discipline. Def.’s SMF

¶ 53. He reviewed the decision of the Hearing Officer, the

hearing transcript, and the Incident Committee’s Report. Id. ¶

55 & n.10. These materials led Mr. Pesce to “believe[] Burley

was solely at fault for the derailment.” Pl.’s SMF ¶ 55A

(quotation marks omitted). Accordingly, he determined that Mr.

Burley should be terminated because of the seriousness of

disregarding a Blue Signal and derailing an engine. Id. ¶ 56.5

Mr. Pesce also determined that Amtrak was required by law to

suspend Mr. Burley’s engineer certificate for 30 days. Id. ¶¶

57-59.

Mr. Burley filed a series of appeals of his punishment. First,

he appealed to Amtrak’s Director of Labor Relations, L.C.

Hriczak, who affirmed the punishment. See Def.’s SMF ¶ 60. Next,

Mr. Burley appealed his termination to the Special Board of

Adjustment 928, a federal arbitration body that hears disputes

5
After the fact, other Amtrak officials testified that they
might have imposed a lesser punishment due to mitigating
factors. See Pl.’s SMF ¶ 54 (Mr. Smith recommended “a penalty of
only thirty days suspension”); id. ¶ 123 (Mr. Pingley and Mr.
Lighty testified that termination may have been excessive);
Sherlock Dep., Ex. D to Def.’s Mot., ECF No. 30-6 at 23:11-21
(Mr. Sherlock testified that Mr. Ebersole’s exit without
informing Mr. Burley “might be mitigating circumstances”).
10
involving train engineers. Id. ¶ 61; see 45 U.S.C. § 153. The

Special Board of Adjustment found “substantial evidence in the

record of [Mr. Burley’s] violations,” noted that “termination in

the instant matter was excessive” although the offense was

nonetheless a serious one, and ordered that Mr. Burley be

reinstated without back pay. See Ex. N to Def.’s Mot., ECF No.

30-15 at 2-3. Finally, Mr. Burley appealed the suspension of his

certification to the Department of Transportation’s Locomotive

Engineer Review Board, Def.’s SMF ¶ 64, which found that a Blue

Signal and blinking blue light had been discovered under the

train after the accident, but determined that there was not

“substantial evidence” to support a finding “that the blue

signal was properly displayed.” Ex. O to Def.’s Mot., ECF No.

30-17 at 5. Accordingly, it overturned the suspension of Mr.

Burley’s certification. See id. at 6.

B. Procedural History

After Mr. Burley was reinstated and his engineer certification

was restored, he filed an internal complaint with Amtrak’s

Dispute Resolution Office, alleging that he was discriminated

against due to his race. Def.’s SMF ¶ 66. After investigation,

the Dispute Resolution Office found no merit to this claim. Id.

Mr. Burley then filed a race-discrimination complaint with the

Equal Employment Opportunity Commission, which issued a Notice

of Right to Sue on April 17, 2011. Id. ¶ 67.

11
 On June 30, 2011, Mr. Burley filed this lawsuit. He alleges

that Amtrak’s decisions to deny his request for a waiver,

terminate him, and revoke his engineer certification were

racially discriminatory in violation of Title VII and the D.C.

Human Rights Act. See Compl., ECF No. 1 ¶¶ 13-18. On April 8,

2013, defendant filed a motion for summary judgment. That motion

is ripe for determination by the Court.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the moving party has

shown that there are no genuine issues of material fact and that

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.

Cir. 2002). A material fact is one that is capable of affecting

the outcome of the litigation. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A genuine issue exists where the

“evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id. A court considering a motion for

summary judgment must draw all “justifiable inferences” from the

evidence in favor of the nonmovant. Id. at 255.

To survive a motion for summary judgment, however, the

requester “must do more than simply show that there is some

metaphysical doubt as to the material facts”; instead, the

nonmoving party must come forward with “‘specific facts showing

12
that there is a genuine issue for trial.’” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)

(quoting Fed. R. Civ. P. 56(e)). Moreover, “although summary

judgment must be approached with special caution in

discrimination cases, a plaintiff is not relieved of his

obligation to support his allegations by affidavits or other

competent evidence showing that there is a genuine issue for

trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C. 2010)

(quotation marks and alterations omitted).

III. DISCUSSION

Title VII makes it unlawful for an employer to “fail or refuse

to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). To establish

unlawful discrimination, Mr. Burley must show that: “(1) []he is

a member of a protected class; (2) []he suffered an adverse

employment action; and (3) the unfavorable action gives rise to

an inference of discrimination.” Wiley v. Glassman, 511 F.3d

151, 155 (D.C. Cir. 2007).6

6
Plaintiff’s claim under the D.C. Human Rights Act requires
similar proof, so the Court addresses it jointly with his Title
VII claim. See Ajisefinni v. KPMG LLP, __ F. Supp. 2d __, 2014
WL 658405, at *7 (D.D.C. Feb. 12, 2014) (“The legal standard for
13
 It is undisputed that Mr. Burley is an African-American, which

is a protected class, and that he suffered an adverse employment

action when he was terminated. The parties dispute whether the

record supports an inference that Amtrak’s actions were

motivated by discrimination.

Mr. Burley presents no direct evidence of discrimination, so

his claims are subject to the burden-shifting framework

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). The D.C. Circuit has indicated, however, that as soon as

the defendant articulates a legitimate, non-discriminatory

reason for the adverse employment action, “the district court

need not -- and should not -- decide whether the plaintiff

actually made out a prima facie case under McDonnell Douglas.”

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008) (emphasis in original). Once a legitimate, non-

discriminatory reason is proffered, the Court must determine

whether the plaintiff has “produced sufficient evidence for a

reasonable jury to find that the employer’s asserted non-

discriminatory reason was not the actual reason and that the

employer intentionally discriminated against the [plaintiff].”

Id.

establishing a discrimination . . . claim under the [D.C.] Human
Rights Act is substantially similar to the standard under Title
VII.”) (alterations in original) (citing Carpenter v. Fed. Nat’l
Mortg. Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999)).
14
 Amtrak claims that it denied Mr. Burley’s request for a waiver

and terminated his employment because its investigation found

that he was culpable for a Blue Signal violation, and that it

revoked Mr. Burley’s certification because it believed that it

was required to do so by law. Mr. Burley attacks these

explanations as pretext and argues that Amtrak: (1) was wrong

about the facts of the accident, which he claims provides a

reason for a jury to infer that Amtrak is covering for

discrimination; (2) conducted an investigation so flawed that it

supports an inference that discrimination permeated the

investigation; and (3) has favored Caucasian employees involved

in similar situations.

A. No Reasonable Jury Could Infer that Amtrak is Lying About
its Reasons for Disciplining Mr. Burley.

Mr. Burley’s first argument in support of pretext is that a

jury could find that Amtrak’s beliefs regarding the facts of the

accident and the appropriate punishment were erroneous. Although

“a factfinder’s disbelief of the reasons put forward by the

defendant may support an inference of intentional

discrimination,” Barnett v. PA Consulting Grp., 715 F.3d 354,

360 (D.C. Cir. 2013) (quotation marks omitted), the question is

not whether a jury could disagree with Amtrak’s decisions. An

inference of discrimination may arise only if “the employer is

making up or lying about the underlying facts that formed the

15
predicate for the employment decision.” Brady, 520 F.3d at 495;

see also Fischbach v. D.C. Dep’t of Corrections, 86 F.3d 1180,

1183 (D.C. Cir. 1996) (inference arises if the employer “made an

error too obvious to be unintentional”). By contrast, “[i]f the

employer’s stated belief . . . is reasonable in light of the

evidence . . . there ordinarily is no basis for permitting a

jury to conclude that the employer is lying . . . .” Brady, 520

F.3d at 495.

Amtrak claims that it sincerely believed that Mr. Burley’s

conduct warranted denial of his request for a waiver and

termination of his employment because the Incident Committee

concluded that a Blue Signal was properly displayed prior to the

accident and Mr. Burley contested this finding. See Def.’s Mot.

at 6-8. Mr. Burley provides no direct evidence that Amtrak or

its officials did not hold those beliefs, so a jury could infer

discrimination only if those beliefs were unreasonable.

Mr. Burley begins by challenging the reasonableness of

Amtrak’s belief that a Blue Signal was properly displayed before

the accident. He does not argue that Amtrak’s conclusion was

baseless; rather, he asserts that “[t]here are disputes of

material fact as to whether the blue flag derail was applied at

the time of the derailment.” Pl.’s Opp. to Mot. for Summ. J.

(“Pl.’s Opp.”), ECF No. 44 at 5 (quotation marks omitted).

Indeed, Mr. Smith found a Blue Signal and a blue light

16
underneath the derailed engine soon after the accident. See

Def.’s SMF ¶¶ 29-30. Although Mr. Smith did not personally see

the Blue Signal prior to the accident, Pl.’s SMF ¶¶ 29-30, 84,

it was reasonable to infer that the Blue Signal ended up

underneath the derailed engine because it was displayed over the

track prior to the accident.

The fact that Amtrak’s conclusion was not the only possible

conclusion does not cast doubt on the sincerity of its belief.

Disciplinary investigations must resolve disputes of fact and

permitting a jury to infer pretext from its disagreement with an

investigation’s findings “would mean that every employee who is

disciplined . . . could sue for employment discrimination . . .

and—merely by denying the underlying allegation of misconduct—

automatically obtain a jury trial.” Brady, 520 F.3d at 496

(emphasis in original). This would turn the Court into “a super-

personnel department that reexamines an entity’s business

decisions.” Barnett, 715 F.3d at 359.7

For similar reasons, Mr. Burley’s request for a spoliation

inference in connection with a videotape of the accident would

not create a genuine issue of material fact. See Pl.’s Opp. at

7
Because this dispute regarding the facts of the accident cannot
disprove the sincerity of Amtrak’s belief in the conclusions of
its investigation, the Court need not address defendant’s claim
that the arbitration ruling of the Special Board of Adjustment
precludes Mr. Burley from re-litigating factual issues related
to the accident. See Def.’s Mot. at 9; Def.’s Reply in Supp. of
Mot. for Summ. J. (“Def.’s Reply”), ECF No. 43 at 3-5.
17
40. Although “a negative inference may be justified where the

defendant has destroyed potentially relevant evidence,” Gerlich

v. U.S. Dep’t of Justice, 711 F.3d 161, 170 (D.C. Cir. 2013),

the only evidence that a videotape even existed is hearsay. See

Edler Decl., Ex. 10 to Pl.’s Opp., ECF No. 40-2 ¶ 4 (declaration

of Mr. Burley’s union representative that he was “told that

security camera video of the incident existed” and that “Roy

Runkles, the AMTRAK employee charged with monitoring the

recording equipment, told me that AMTRAK had erased the tapes”).8

In any event, granting Mr. Burley’s request for an inference

“that the videotape supports his version of events,” Pl.’s Opp.

at 40, would not create an inference of pretext for the same

reason that viewing the facts of the accident in the light most

favorable to Mr. Burley does not support such an inference; it

8
Plaintiff asserts that the statement by Roy Runkles is an
admission by a party opponent under Federal Rule of Evidence
801(d)(2). See Pl.’s Surreply, ECF No. 52 at 22. He relies,
however, on cases admitting statements that spoke directly to a
supervisor’s biased motivations and were made by declarants who
had “some authority to speak on matters of hiring or promotion”
or were “involved in the decision-making process in general.”
E.g., Talavera v. Shah, 638 F.3d 303, 309-10 (D.C. Cir. 2011).
By contrast, a statement is properly excluded in the absence of
evidence that it was “within the scope of [the declarant’s]
employment or that [the declarant] was given authority to speak
on behalf of [the employer] on the subject.” Id. at 310. Mr.
Runkles appears to have had no involvement with the underlying
employment decisions and investigation and there is no evidence
that he had any authority to speak on behalf of Amtrak.
18
does not undermine the sincerity of Amtrak’s belief in the

results of its investigation. See supra at 16-17.9

Nor is there any evidence that Amtrak did not believe that Mr.

Burley’s conduct warranted denial of his request for a waiver.

While the record is sparse, it reflects that Amtrak considers

the seriousness of an offense and whether an employee denies the

results of the initial investigation in deciding whether to

grant a waiver. Def.’s SMF ¶ 45; see also Sherlock Decl., Ex. E

to Def.’s Mot., ECF No. 30-7 ¶ 15. Mr. Burley argues that his

request for a waiver, by definition, is an acceptance of the

investigation’s findings. Pl.’s SMF ¶ 108. Even so, Mr. Burley

contested the finding that a Blue Signal was displayed and such

a situation may require a formal hearing to resolve the dispute.

See Def.’s SMF ¶ 45. In any event, Mr. Burley was charged with

serious safety violations and has not produced evidence “for a

reasonable jury to find that [this] . . . was not the actual

reason” for the denial of his request. Brady, 520 F.3d at 494.

9
Mr. Burley appears to request an additional inference that the
videotape—if it existed—was destroyed “to prevent Burley from
having a fair hearing on his claims.” Pl.’s Opp. at 40. There is
no evidence to support such an inference. Cf. Valentino v. U.S.
Postal Serv., 674 F.2d 56, 73 & n.31 (D.C. Cir. 1982) (denying
request for spoliation where “the circumstances of the
destruction . . . provide no basis for attributing bad faith to
[the defendant]”). Plaintiff relies on Gerlich, 711 F.3d 161,
but that case involved clear evidence that the documents at
issue had been “intentionally destroyed” and, in any event, the
Court was not facing a request for a spoliation inference with
respect to the reasons that documents were destroyed, only the
potential contents of those documents. See id. at 170-72.
19
 With respect to Amtrak’s termination of Mr. Burley’s

employment, plaintiff admitted that Mr. Pesce made this decision

“believ[ing] Burley was solely at fault for the derailment,”

Pl.’s SMF ¶ 55A, but argues that termination was an excessive

punishment. See id. ¶¶ 54-56, 123. In support, he cites

deposition testimony from individuals who testified that

termination “might” have been excessive. See Sherlock Dep., Ex.

D to Def.’s Mot., ECF No. 30-6 at 23:11-21; Lighty Dep., Ex. D

to Def.’s Reply, ECF No. 43-5 at 16:20-22, 18:1-9, 19:10-16;

Pingley Dep., Ex. 20 to Pl.’s Opp., ECF No. 39-5 at 35:20-36:2.

Mr. Smith also testified that he would not have recommended

termination “in this scenario.” Smith Dep., Ex. F to Def.’s

Reply, ECF No. 43-7 at 44:19-45:8. None of this evidence,

however, demonstrates that Amtrak imposed termination for

discriminatory reasons. Even if termination was excessive,

“Title VII protects against discriminatory decisions, not wrong

ones.” Hairsine v. James, 517 F. Supp. 2d 301, 308-09 (D.D.C.

2007). Nor does the evidence show that Mr. Pesce’s decision to

terminate Mr. Burley was “an error too obvious to be

unintentional.” Fischbach, 86 F.3d at 1183. In any event, Mr.

Pesce could not have acted for discriminatory reasons because he

was unaware of Mr. Burley’s race. See infra at 21 n.11.10

10
Mr. Burley separately challenges Amtrak’s suspension of his
engineer certification. He believes that Amtrak should have
20
 B. No Reasonable Jury Could Infer Pretext from Amtrak’s
Investigation.

Mr. Burley’s second argument in support of pretext is that

Amtrak’s investigation was so flawed that a jury could infer

“that discriminatory treatment may have permeated the

investigation itself.” Mastro v. Potomac Elec. Power Co., 447

F.3d 843, 856 (D.C. Cir. 2006). Notably, Mr. Burley does not

challenge the motivations of Mr. Pesce or Mr. Sherlock during

the course of the investigation and disciplinary process.11

Instead, plaintiff claims that Mr. Smith orchestrated the

considered mitigating circumstances, such as Mr. Ebersole’s
behavior. See Pl.’s Opp. at 20. The relevant regulations mandate
that an engineer’s certification be suspended when the engineer
“[f]ail[s] to control a locomotive or train in accordance with a
signal indication . . . that requires a complete stop before
passing it.” 49 C.F.R. § 240.117(e)(1). Mr. Burley admitted that
Amtrak found that he committed such a violation. See Pl.’s SMF ¶
58. Although the regulations permit consideration of whether “an
intervening cause prevented or materially impaired” an engineer
from complying, 49 C.F.R. § 240.307(i)(1), the formal hearing
concluded that the charges against Mr. Burley had been proven
despite Mr. Ebersole’s behavior. See Decision Letter, Ex. K to
Def.’s Mot. for Summ. J., ECF No. 30-13 at 4.
11
This is unsurprising because unrebutted evidence shows that
neither knew that plaintiff was African-American until after the
events of this case, Sherlock Decl., Ex. E to Def.’s Mot., ECF
No. 30-7 ¶ 16; Def.’s SMF ¶ 59, and “[i]t is axiomatic that a
defendant cannot be found to have discriminated against a
plaintiff on the basis of race where the defendant had no
knowledge of the plaintiff’s race.” Pollard v. Quest Diag., 610
F. Supp. 2d 1, 21 (D.D.C. 2009). Plaintiff’s unsupported
speculation that Mr. Pesce was aware of his race because Mr.
Pesce supervised a small number of engineers, Pl.’s SMF ¶ 59, is
not supported by any evidence that Mr. Pesce, then General
Superintendent of Amtrak’s Mid-Atlantic Division, supervised a
small number of employees with whom he was familiar.
21
investigation so that Mr. Burley would be blamed, and that he

did so for discriminatory reasons.12

Although Mr. Burley identifies no direct evidence that Mr.

Smith acted for discriminatory reasons, an inference of

discrimination could still arise if his investigation was “not

just flawed but inexplicably unfair.” Mastro, 447 F.3d at 855.

Mr. Burley claims that the investigation falls within this

doctrine because Mr. Smith “ran the Incident Committee and

manipulated the report” and intentionally hid evidence that

would have inculpated Mr. Ebersole. See Pl.’s Opp. at 18-22.

Plaintiff, however, supplied no evidence of manipulation and

appeared to testify that he had no basis for believing that Mr.

Smith was being untruthful. See Burley Dep., Ex. 18 to Pl.’s

Opp., ECF No. 37-1 at 232:25-233:8, 337:13-338:7. Mr. Burley’s

dispute ultimately focuses on two issues: Mr. Smith’s alleged

failure to include certain facts in his Report and what Mr.

Burley claims were procedural infirmities in the investigation.

See Pl.’s Opp. at 19-22.

12
The defendant argues that Mr. Smith’s motivations are
irrelevant because he did not direct any of the adverse
employment actions of which Mr. Burley complains. See Def.’s
Reply at 13-16. Plaintiff believes that Mr. Smith’s
investigation and testimony influenced the ultimate
decisionmakers within the meaning of the Supreme Court’s
decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011).
See Pl.’s Opp. at 14-16. The Court need not address this dispute
because no reasonable jury could infer that Mr. Smith acted with
discriminatory motivations.
22
 As to Mr. Smith’s Report, Mr. Burley claims that it omitted

mention of “when Ebersole abandoned his position and jumped off

the train,” that Mr. Ebersole had violated Amtrak and NORAC

Rules, and “why Ebersole was not in a position to assist

Burley.” Id. at 19-20. The first fact was actually included in

the Report. See Incident Report, Ex. 2 to Sherlock Decl., ECF

No. 30-7 at 17. Although the Report did not mention the

particular rules that were violated by any crew member, it

contained facts that formed the basis for charging Mr. Ebersole

with four rule violations, including one for exiting a moving

engine. See Ebersole Charges, Ex. 1 to Pl.’s Opp., ECF No. 42-1

at 1-2. The third fact—why Mr. Ebersole was not on the train—is

mentioned in the Report, along with other details of Mr.

Ebersole’s departure from the engine—he exited the engine “to

walk ahead of the locomotive to the [Service and Inspection

Building]” and failed to advise Mr. Burley of the position of

the derail. See Incident Report, Ex. 2 to Sherlock Decl., ECF

No. 30-7 at 17.

Nor was Mr. Smith’s investigation procedurally unfair like the

investigation the D.C. Circuit addressed in Mastro. In that

case, the investigation turned on the relative credibility of

witnesses whose testimony contradicted that of the plaintiff.

See Mastro, 447 F.3d at 848-49. The investigation nonetheless

failed to consider those witnesses’ credibility—even though all

23
had strong motive to lie. Id. at 855-56. Further, the

investigator’s assessment of the evidence relied on vague

feelings rather than serious analysis, and the employer failed

to consider the plaintiff’s lack of motive to lie. See id. By

contrast, Mr. Smith based his findings on physical evidence of

what was found after the accident. See Def.’s SMF ¶¶ 29-31. To

the extent he relied on witness statements, it was to establish

the undisputed fact that Mr. Ebersole had exited the engine and

failed to inform Mr. Burley about the position of the derailer.

See Incident Report, Ex. 2 to Sherlock Decl., ECF No. 30-7 at

17-18. Moreover, Mr. Smith’s investigation was reviewed by

formal procedures during which Mr. Burley was able to cross-

examine Mr. Smith regarding his investigation and Report, and to

present his own evidence and argument. See supra at 9-11.

C. No Reasonable Jury Could Infer that Amtrak Favors
Similarly Situated Caucasian Employees.

Mr. Burley’s third argument is that his treatment deviated

from that of similarly situated Caucasian employees. To prove

this, Mr. Burley must “produc[e] evidence suggesting that the

employer treated other employees of a different race . . . more

favorably in the same factual circumstances.” Brady, 520 F.3d at

495 (emphasis added). In this Circuit, comparators must have

been “charged with offenses of comparable seriousness” and “‘all

of the relevant aspects of [their] employment situation[s] [must

24
have been] nearly identical.’” Holbrook v. Reno, 196 F.3d 255,

261 (D.C. Cir. 1999) (quoting Neuren v. Adduci, Mastriani, Meeks

& Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995)). Factors relevant

to this inquiry include “whether the alleged comparators dealt

with the same supervisor, have been subject to the same

standards and have engaged in the same conduct without such

differentiating or mitigating circumstances that would

distinguish their conduct or the employer’s treatment of them

for it.” Kassim v. Inter-Continental Hotels Corp., __ F. Supp.

2d __, 2013 WL 6154115, at *5 (D.D.C. Nov. 25, 2013). “If no

reasonable juror could conclude that two employees were

similarly situated, then a court may find they were not

similarly situated as a matter of law.” Evans v. Holder, 618 F.

Supp. 2d 1, 11 (D.D.C. 2009) (citing George v. Leavitt, 407 F.3d

405, 414-15 (D.C. Cir. 2005)).

1. Mr. Ebersole

Plaintiff’s primary argument is that Mr. Ebersole is a proper

comparator because the two were involved in the same accident

and Mr. Ebersole was treated more favorably. While individuals

in different occupations are not always proper comparators, they

may be if they “were accused of making similar mistakes, were

equally responsible for avoiding those mistakes, and were

disciplined by the same superior.” Rodgers v. White, 657 F.3d

511, 518 (7th Cir. 2011). Mr. Ebersole, however, shares none of

25
these traits with Mr. Burley. For one, there is no evidence that

Mr. Ebersole was disciplined by Mr. Smith, Mr. Pesce, or Mr.

Sherlock. See supra at 8-9.

Moreover, although Mr. Burley believes that Mr. Ebersole was

at least as culpable for the accident, material differences in

their conduct and responsibilities make them improper

comparators. As reflected in Amtrak’s charges, Mr. Burley was

present on the engine and Mr. Ebersole was not. See Burley

Charges, Ex. 3 to Sherlock Decl., ECF No. 30-7 at 22-23;

Ebersole Charges, Ex. 1 to Pl.’s Opp., ECF No. 42-1 at 1-2. The

Incident Committee, as well as Mr. Sherlock and Mr. Pesce, found

this to be a material difference that justified holding Mr.

Burley more culpable. Incident Report, Ex. 2 to Sherlock Decl.,

ECF No. 30-7 at 1-3; Def.’s SMF ¶ 46. It is therefore a

“differentiating . . . circumstance[] that would distinguish

their conduct or the employer’s treatment of them for it.”

Kassim, 2013 WL 6154115, at *5.

Mr. Ebersole and Mr. Burley also had distinct

responsibilities. It was Mr. Burley’s sole responsibility to

operate the engine, and it was Mr. Ebersole’s responsibility to

oversee the train and the crew. See Def.’s SMF ¶¶ 4-5; Pl.’s SMF

¶¶ 4, 70-71; NORAC Rules, Ex. F to Def.’s Mot., ECF No. 30-8 at

9. Mr. Burley believes that Mr. Ebersole’s responsibilities as a

conductor render him more culpable for the accident, but “it is

26
not the role of this Court to disagree with the defendant’s

conclusion about the relative seriousness of

Plaintiff’s misconduct versus [a comparator’s] alleged rules

infractions, because Title VII does not hold employers liable

for erroneous judgment, unless that judgment is motivated by an

illegal discriminatory motivation.” Phillips v. Holladay Prop.

Servs., 937 F. Supp. 32, 37 (D.D.C. 1996) (quotation marks

omitted).

Mr. Burley opines that he and Mr. Ebersole were equally

culpable for the accident because Mr. Ebersole exited a moving

train, failed to alert Mr. Burley to his departure, and was not

stationed on the leading end of the engine’s movement. See Pl.’s

Opp. at 29-34. This does not make them proper comparators,

however, because it only renders their conduct more distinct.

Amtrak provided evidence that physical presence on a train is a

key factor in deciding an employee’s culpability for an ensuing

accident and Mr. Burley provided no evidence to contradict this.

See Def.’s SMF ¶ 46. Mr. Burley would permit a jury to infer

discriminatory intent from its disagreement with Amtrak’s

personnel determinations. Absent evidence that Amtrak’s

culpability determination was entirely unreasonable or that it

differed from Amtrak’s treatment of similarly situated

employees, it is not for the Court to second-guess Amtrak’s

determination of the relative seriousness of distinct conduct

27
committed by employees with distinct responsibilities. See

Phillips, 937 F. Supp. at 37.

2. Other Proposed Comparators.

Plaintiff also identified six Caucasian engineers who were

involved in safety violations but were not terminated. See Opp.

at 35-39. He believes that the treatment of these comparators

undermines Amtrak’s assertion that it harshly disciplines all

engineers for serious safety violations. Id. at 38. The utility

of these comparators, however, is severely limited because none

share a supervisor with Mr. Burley. “[I]n order to effectively

compare the [employer’s] actions toward [the comparator and the

plaintiff], the supervisors taking those actions on behalf of

the employer must have been the same.” Kassim, 2013 WL 6154115,

at *7. “This point follows logically from the cause of action

itself, which requires proof that the decisionmaker has acted

for a prohibited reason”; different decisionmakers “may rely on

different factors when deciding whether, and how severely, to

discipline an employee.” Coleman v. Donahoe, 667 F.3d 835, 847,

848 (7th Cir. 2012) (quotation marks and emphasis omitted). Mr.

Burley claims that the Amtrak official who discriminated against

him was Mr. Smith, yet none of his proposed comparators were

disciplined by Mr. Smith.13

13
Mr. Pesce or Mr. Sherlock disciplined some of plaintiff’s
comparators, but plaintiff failed to rebut evidence that neither
28
 These comparators are also distinct because none “engaged in

the same conduct” as Mr. Burley and many had “differentiating or

mitigating circumstances that . . . distinguish . . . the

employer’s treatment of them . . . .” Kassim, 2013 WL 6154115,

at *5. Mr. Burley’s conclusory assertions that a jury could find

that the conduct was similar do not explain how, despite these

comparators’ different conduct, which violated different NORAC

rules, they are “nearly identical” to him. See Holbrook, 196

F.3d at 261.14

Some of Mr. Burley’s proposed comparators were involved in

very distinct safety violations, such as “an incident in which

the engine he was operating experienced an undesired emergency

application of the brakes,” Pesce Decl., Ex. L to Def.’s Mot.,

ECF No. 30-14 ¶ 14, or a failure “to properly line a hand-

operated switch for a trailing point movement,” which resulted

in damage to the switch. See id. ¶ 15. These engineers’ conduct

did not involve a derailment or the failure to obey a signal and

were aware of his race before he was disciplined. See supra at
21 n.11. Thus, comparator evidence regarding these individuals
cannot prove that they discriminated against Mr. Burley.
14
Mr. Burley appears to believe that the rule violations are
similar because they are all listed in federal regulations which
govern when an engineer’s certification must be suspended. See
Pl.’s Opp. at 35. These regulations, however, do not govern
Amtrak’s decisions regarding waivers of punishment or
termination. See 49 C.F.R. § 240.117.
29
thus cannot readily be compared to Mr. Burley’s failure to obey

a Blue Signal, which resulted in a derailment.

Others caused accidents by operating their engines above

restricted speed. See, e.g., Sherlock Decl., Ex. E to Def.’s

Mot., ECF No. 30-7 ¶ 19; Pl.’s Opp. at 38-39. Unlike Mr. Burley,

however, they were not also charged with a signal violation or

with operating their engine over an applied derailer.

The remaining comparators engaged in conduct that is closer to

Mr. Burley’s, but Mr. Burley explained their favorable treatment

as a product of their ties to Amtrak, not their race. One

engineer received a waiver after running his engine over the

same switches twice in one day, resulting in a derailment. See

Burley Dep., Ex. 18 to Pl.’s Opp., ECF No. 37-1 at 371:7-19. His

conduct does not appear to have involved failure to obey a

signal and Mr. Burley testified that this engineer was treated

favorably due to family ties to Amtrak. See id. at 372:2-5.

Similarly, Mr. Burley identified an engineer who was given a

waiver after two stop-signal violations. See id. at 370:9-20.

This conduct did not involve a Blue Signal violation and Mr.

Burley testified that this individual was treated favorably

“[b]ecause of his strong connection. He was a [Washington

Terminal] man too.” Id. at 370:23-371:6.

Ultimately, no reasonable jury could rely on Mr. Burley’s

proposed comparators to conclude that Amtrak was motivated by

30
discrimination. None were disciplined by the individual Mr.

Burley claims discriminated against him. None engaged in the

same conduct as Mr. Burley and many engaged in very distinct

conduct. Finally, Mr. Burley noted that some of his comparators

were treated better due to family or personal connections, not

their race.15

IV. CONCLUSION

For the foregoing reasons, the Court hereby GRANTS defendant’s

motion for summary judgment. An appropriate Order accompanies

this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
March 31, 2014

15
Mr. Burley identified two comparators who were charged with a
derailment resulting from a Blue Signal violation, but both are
African-American engineers. See Sherlock Decl., Ex. E to Def.’s
Mot, ECF No. ¶ 20; Burley Dep., Ex. 18 to Pl.’s Opp., ECF No.
37-1 at 375:7-377:6, 377:7-23. If anything, these potential
comparators undermine his argument because one was treated the
same as Mr. Burley—terminated for a Blue Signal violation—after
his second safety violation in one year, and the second was
treated better than Mr. Burley—not terminated after a Blue
Signal violation—even though she shares the characteristic he
claims motivated his punishment. See Phillips, 937 F. Supp. 32,
36 (the fact that similarly situated comparator who shared the
plaintiff’s race was treated more favorably “serve[d] only to
undermine Plaintiff’s race-based disparate treatment claim”).
31