Burley v. Nat'l Passenger Rail Corp.

• Decision Date: 18 September 2015
• Docket Number: No. 14–7051.,14–7051.
• Citation: 801 F.3d 290
• Parties: Greg BURLEY, Appellant v. NATIONAL PASSENGER RAIL CORP., Doing Business as Amtrak, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

801 F.3d 290

Greg BURLEY, Appellant
v.
NATIONAL PASSENGER RAIL CORP., Doing Business as Amtrak, Appellee.

No. 14–7051.

United States Court of Appeals, District of Columbia Circuit.

Argued March 20, 2015.
Decided Sept. 18, 2015.
Rehearing En Banc Denied Nov. 6, 2015.

John F. Karl, Jr. argued the cause and filed the briefs for appellant. Kristen Grim Hughes entered an appearance.

Andrew G. Sakallaris argued the cause for appellee. With him on the brief was Jonathan C. Fritts.

Before: TATEL, KAVANAUGH and PILLARD, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

Gregory Burley, an African–American train engineer, claims that his employer, the National Passenger Railroad Corporation (Amtrak), discriminated against him because of his race in violation of Title VII and the District of Columbia Human Rights Act. After the engine Burley was driving passed a stop signal at the rail yard and was forced off the rails by a safety derailer, Amtrak fired him and suspended his engineer certificate. The district court granted Amtrak's motion for summary judgment. Burley contends that was error because Amtrak's entire investigation of the derailment was so patently flawed, and the discipline it imposed on him so disproportionate, that a jury could infer that Amtrak engaged in intentional racial discrimination. Amtrak defends the discipline on the ground that passing a signal in a work area is a serious infraction likely to cause serious injury or death to workers on or around the tracks, even if no one was injured in this case and the property damage was only modest. Amtrak also relies on the undisputed evidence that the official who decided on the severity of the discipline was unaware of Burley's race. We have carefully examined the record and Burley's arguments. Because no jury could reasonably conclude based on the evidence in the record that Amtrak was motivated by Burley's race to take the adverse actions of which he complains, we affirm.

I. Background

At the time of the accident, Burley worked as an engineer at Amtrak's Ivy City Maintenance Facility, a rail yard in

801 F.3d 294

Washington, D.C., where he moved rail cars around the facility as needed for maintenance and repair. Burley's work was governed by the Northeast Operating Rules Advisory Committee Operating Rules (NORAC Rules). NORAC Rule 16 states that the engineer must not allow the train to pass a blue signal—a type of rail-yard stop sign indicating that workers may be on or near the track ahead and that continuing forward may cause serious injury or death. A blue signal typically consists of a blue metal flag and a flashing blue light to make it visible in the dark, but an engineer must stop for a blue signal even if there is no blue light. Blue signals may be accompanied by derailers, which are additional safety devices to protect track workers. Sometimes a blue light that accompanies a blue signal flag is affixed to a nearby wall, and sometimes a blue light is attached to the signal itself. When, for whatever reason, an engine fails to stop for a blue signal, a derailer, if present and in an “applied” position, forces the engine off the track before it hits anyone. NORAC Rule 104(d) requires engineers to know the locations of permanent derailers and prohibits an engineer from operating over an applied derailer.

In the early morning darkness of October 20, 2007, the engine Burley was driving at the Ivy City yard derailed. Burley was working with Conductor Jerry Ebersole, a white male, and Assistant Conductor Lawrence Mahalak. Near the end of their shift, the crew was instructed to move a train car that had undergone maintenance work on Track 7 in the Service and Inspection Building. As the engine approached Track 7 to retrieve the repaired car, Ebersole instructed Mahalak to dismount the engine and walk ahead in order to prepare the car to be towed out. Ebersole threw switches on the track, boarded the train, and instructed Burley to go forward.

As the train moved along Track 7, Ebersole dismounted the slowly moving train, intending to walk ahead of the train to the Service and Inspection Building. Ebersole stepped down from the front edge of the engine where Burley could not see him, and did not tell Burley that he had left the train or that the engine was approaching an applied derailer on the track. It is undisputed that Burley's view of the derailer just ahead was blocked, given his position on the engine and the curve of the track. According to Burley, he did not see any blue signal on the track as he approached, and he noticed that the blue lights on the outside of the service building were not illuminated (as they should have been if a blue signal were displayed on the track). Shortly after Ebersole exited the train, Burley ran over the derailer and the train derailed. Nobody was hurt, and the property damage was not extensive.

Because of the potential for harm to track workers, however, it is undisputed that Amtrak considers any blue-signal infraction to be extremely serious. Leslie David Smith, Burley's supervisor in the Transportation Department and the senior Amtrak supervisor on duty at the time of the derailment, who is white, convened an incident committee to investigate. The other two members of the committee, an assistant superintendent in the Mechanical Department and a track supervisor in the Engineering Department, are African American. Smith inspected the scene, took photographs, interviewed the crew, and discussed the incident with other members of the Transportation Department. J.A. 153–55, 405–06. Smith recounted that he observed a blue flag and a blue light, still flashing, underneath the derailed engine. He concluded in the committee report that the blue signal was displayed on the track at the time of the derailment, and that Burley had passed

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through the blue signal and over the derailer. Smith reported that Ebersole had exited the engine before the derailment. Smith apparently remained unaware, however, that Ebersole failed to tell Burley when Ebersole left the engine. Smith concluded that Burley violated safety rules.

Amtrak brought formal disciplinary charges against Burley and Ebersole. Each of them requested a “waiver”—a dispensation available under Amtrak's disciplinary rules to an employee who accepts responsibility for a rule violation and forgoes the right to a formal investigation in exchange for a lesser penalty. Amtrak granted Ebersole's request for a waiver, but denied Burley's. A hearing officer then held a formal disciplinary hearing on the charges against Burley. At the hearing, Burley's union represented him, and he had an opportunity to testify and cross-examine Amtrak's witnesses. The hearing officer, relying in large part on Smith's testimony, concluded that the evidence demonstrated that the blue signal was correctly displayed and that the charges against Burley had been proven.

Amtrak transmitted the incident committee's report and the formal hearing record to Daryl Pesce, Amtrak's General Superintendent of the Mid–Atlantic Division, who was responsible for imposing discipline. Pesce was unaware of Burley's race. He reviewed the hearing officer's decision, the hearing transcript, and Smith's report and concluded that Burley's “carelessness in disregarding a Blue Signal created the risk of serious injury or death and thus warranted termination” and a thirty-day suspension of his engineer certificate. Pesce Decl. (J.A. 249).

Burley appealed internally to Amtrak's Director of Labor Relations, who denied the appeal, and then externally to Special Board of Adjustment 948, which concluded that Burley committed the violation, but reinstated him (with seniority but without back pay). Burley appealed the suspension of his engineer's certificate to the Federal Railroad Administration's Locomotive Engineer Review Board. The Locomotive Engineer Review Board found a lack of substantial evidence that a blue signal was properly displayed before the derailment, and therefore overturned the certification suspension.

After exhausting other remedies, Burley sued Amtrak for racial discrimination, seeking, among other relief, two years' worth of back pay. The district court granted summary judgment to Amtrak, Burley v. Nat'l Passenger Rail Corp., 33 F.Supp.3d 61 (D.D.C. 2014), and Burley timely appealed.

II. Legal Standards

Our review of a district court's grant of summary judgment is de novo. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C.Cir.2011). Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A moving party is entitled to summary judgment if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute about a material fact is “ ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, ...