Greg Burley v. National Passenger Rail Corp. , 801 F.3d 290 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2015 Decided September 18, 2015
No. 14-7051
GREG BURLEY,
APPELLANT
v.
NATIONAL PASSENGER RAIL CORP., DOING BUSINESS AS
AMTRAK,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01222)
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 for the Court filed by Circuit Judge PILLARD.
2
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
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
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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
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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 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
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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.
6
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
(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 (1986). In considering a motion for
summary judgment, the court views the evidence in the light
most favorable to the nonmoving party and draws all
reasonable inferences in its favor. Calhoun, 632 F.3d at 1261.
This court, like the district court, may not make credibility
determinations or weigh the evidence. Id.
Amtrak’s position is that it disciplined Burley based on
an investigation showing what it considers to be an extremely
serious infraction of safety rules, and that Burley’s race had
nothing to do with it. In a Title VII action, once an employer
has offered a legitimate, non-discriminatory reason for the
challenged employment decision, the court’s inquiry focuses
on “one central question: Has the employee produced
7
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 employee on the basis of race, color,
religion, sex, or national origin?” Brady v. Office of the
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). To
answer that question at the summary judgment stage, the court
assesses whether “there is evidence from which a reasonable
jury could find that the employer’s stated reason for the firing
is pretext” and that “unlawful discrimination was at work.”
Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C.
Cir. 2013). The analysis is the same for Burley’s claim under
the District of Columbia Human Rights Act (DCHRA). See
id. Burley’s Title VII claims and DCHRA claims thus rise
and fall together.
Burley seeks to show that Amtrak’s proffered reason for
its discipline of Burley was pretextual. He contends that
Smith’s investigation arrived at conclusions so erroneous and
contrary to the evidence—especially concerning the location
and condition of any blue signal—as to suggest
discrimination. The investigation’s failure to examine what
Burley characterizes as key, exculpatory videotape evidence
was, in Burley’s view, itself a ground on which a jury could
find that Amtrak discriminated. Burley asserts that the
investigation as a whole was little more than a shoddy cover-
up for the real, discriminatory reason for his discipline.
A plaintiff can establish that an employer’s stated reason
for the adverse employment action was a pretext for
discrimination by showing that “the employer is making up or
lying about the underlying facts that formed the predicate for
the employment decision.” Brady, 520 F.3d at 495. “If the
jury can infer that the employer’s explanation is not only a
mistaken one in terms of the facts, but a lie, that should
8
provide even stronger evidence of discrimination.” Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1293 (D.C. Cir. 1998) (en
banc). A plaintiff might also establish pretext with evidence
that a factual determination underlying an adverse
employment action is egregiously wrong, because “if the
employer made an error too obvious to be unintentional,
perhaps it had an unlawful motive for doing so.” Fischbach
v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996).
An employer’s investigation that is so unsystematic and
incomplete that a factfinder could conclude that the employer
sought, not to discover the truth, but to cover up its own
discrimination can also permit a factfinder to find pretext.
See Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 855
(D.C. Cir. 2006). Our purpose in smoking out pretextual
employer rationales is to discern whether prohibited
discrimination may be a real reason for the challenged action.
A false “mistake” or obvious omission can itself bespeak
discrimination.
Burley also points to the relatively lenient treatment of
other, white employees whom he views as similarly situated
to him as confirmation that his discipline was unjustifiably
harsh based on his race. Evidence suggesting that the
employer treated similarly situated persons who were not the
same race as the plaintiff more favorably than it treated the
plaintiff can also be probative of discrimination. See Brady,
520 F.3d at 495.
III. Analysis
Burley contends that the summary judgment record could
support a conclusion that Amtrak’s stated reason for
disciplining him was pretextual, that Smith’s investigation
was racially motivated, and that Smith’s tainted investigation
affected Amtrak’s subsequent decisions to discipline him.
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Specifically, Burley contends that Smith conducted an
incomplete and unfair investigation and presented misleading
and false conclusions that disproportionately laid the blame
on Burley as compared to Ebersole, the white conductor on
duty. Burley asserts that the less harsh discipline Amtrak
imposed on white employees for what he characterizes as
comparable disciplinary infractions confirms that its treatment
of him was racially biased.
To succeed on his claim, Burley must establish that his
race was a motivating factor in Amtrak’s adverse action
against him. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148-49 (2000). As is frequently true, even of
successful discrimination cases, there is no direct evidence
here—neither documentary nor testimonial—of racial bias.
Indeed, there is no evidence that Amtrak’s final decision
maker on Burley’s discipline, General Superintendent Pesce,
was even aware of Burley’s race. Burley does not dispute that
Pesce was unaware that Burley is African American; rather,
he contends that Smith’s discriminatory animus infected the
disciplinary process such that discrimination was a significant
cause of the discipline Pesce imposed. Pesce was, in Burley’s
view, an unwitting but effective agent of Smith’s
discrimination.
Burley thus invokes a combination of a cat’s paw theory
and circumstantial evidence of racial discrimination. The
Supreme Court set forth the standard for prevailing on a cat’s
paw theory in Staub v. Proctor Hospital, 131 S. Ct. 1186
(2011).1 The plaintiff in Staub did not contend that the
1
Although Staub was not a Title VII case—it involved
discrimination based on the employee’s military obligations in
violation of the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. § 4311—we have
10
manager who made the ultimate decision to fire him harbored
the prohibited motive, but that his direct supervisors did, and
that those supervisors’ bias influenced the ultimate decision
maker. Id. at 1190. Staub held that a plaintiff could prevail
on such a theory “if [1] a supervisor performs an act
motivated by [discriminatory] animus, [2] that is intended by
the supervisor to cause an adverse employment action, and
…[3] that act is a proximate cause of the ultimate
employment action.” Id. at 1194. Because Burley’s case
founders on the absence of evidence raising a reasonable
inference that Smith was motivated even in part by racial
discrimination, we need not separately analyze the causal
factors.
A.
Smith’s conclusions should not be credited, Burley
asserts, because Smith drew falsely inculpatory inferences
against Burley from the physical evidence and witness
accounts at the scene. The principal evidence on which
Smith’s investigative committee relied to conclude that
Burley violated the safety rules was that, shortly after the
accident, Smith found (and photographed) a visibly bent blue
signal alongside a detached blinking blue light underneath the
derailed engine. J.A. 155-56, 358-59. Based on what he saw
and what eyewitnesses reported, Smith inferred that a blue
signal had been correctly displayed. J.A. 366-67.
Burley seeks to impugn Smith’s conclusion by noting
that Smith did not see the derailment, whereas Burley was
present and observed no blue signal. Burley also contends
that if a blue flag and light had been in place and an engine
struck them, they would have been destroyed, not merely bent
acknowledged its relevance in the Title VII context. See Hampton
v. Vilsack, 685 F.3d 1096, 1102 (D.C. Cir. 2012).
11
as Smith reported. In Burley’s view, the Locomotive
Engineer Review Board’s conclusion that substantial evidence
did not show that the blue signal was properly displayed is yet
another sign that Smith’s contrary conclusion was racially
motivated.
Burley’s analysis of the record falls short of identifying
grounds on which a factfinder reasonably could conclude that
Amtrak’s stated rationale for disciplining him was a pretext
for racial discrimination. We fully credit that a jury might
fairly believe Burley’s testimony that he did not see any blue
signal in place. We accept that a plaintiff’s own firsthand
observations of relevant facts are probative evidence, and that
we must not set them aside merely because they come from a
party who necessarily has a stake in the outcome. The
Locomotive Engineer Review Board’s assessment of the
weight of the evidence bolsters Burley’s contention that there
was no blue signal in place and suggests that a jury might
similarly conclude that Smith erred in determining that Burley
had crossed a displayed blue signal. In the circumstances of
this case, however, the plausibility of those differing
observations and inferences is not, without more, grounds on
which a reasonable jury could conclude that Smith was so far
off base as to suggest that he acted with a racial motive.
B.
Burley next argues that bias can be inferred because
Smith intentionally failed to disclose a mitigating fact about
the derailment in his investigative report and hearing
testimony. According to Burley’s uncontradicted testimony,
train conductor Ebersole stepped off the engine without
warning him, leaving Burley unaware that Ebersole was not in
a position to signal to Burley that there was a displayed blue
signal and an applied derailer on the track ahead. J.A. 517-
12
18. According to Burley, if Ebersole had told him that he was
exiting the train, the accident would not have happened.
Smith never mentioned in either his investigative report or his
testimony at Burley’s disciplinary hearing, however, the fact
that Burley did not know that Ebersole was out of position at
the time of the accident. Burley argues that is because Smith
consciously omitted it for racially discriminatory reasons.
Burley’s argument fails because there is no evidence that
Smith knew Burley was unaware of Ebersole’s position.
Ebersole did not tell Smith when Smith interviewed him
shortly after the incident that he left the train without telling
Burley. J.A. 633-41. Burley did not testify at his deposition
that he or anyone else to his knowledge ever told Smith that
Burley was unaware that Ebersole was out of position.
Burley’s union representative did not cross-examine Smith at
Burley’s disciplinary hearing about Smith’s failure to include
that fact in his report. Smith testified at his deposition that he
did not know that Ebersole had exited the train without
informing Burley. J.A. 161. Burley’s counsel, by post-
argument letter, notes that “[t]here is no direct evidence in the
record that Smith knew,” see Burley 28(j) Letter (Mar. 26,
2015), and despite the opportunity for Burley and his
representative to develop the point, the record is devoid of
even a circumstantial basis from which to infer that Smith
knew when he investigated and testified at Burley’s hearing
that Burley thought Ebersole was still on the train with him at
the time of the accident and so would have warned him of any
signal or applied derailer ahead. Smith’s withholding of
mitigating evidence of which he was unaware could not
support a determination that Smith acted with racial bias.
13
C.
Burley next contends that a reasonable jury could
conclude that Smith’s investigation was so incomplete,
unsystematic, or biased as to suggest that Smith discriminated
against Burley on the basis of his race. An investigation that
“lack[s] the careful, systematic assessments of credibility” of
the witnesses and evidence “one would expect in an inquiry
on which an employee’s reputation and livelihood depended”
may give rise to an inference that the employer’s reasons are a
pretext for discrimination. Mastro, 447 F.3d at 855. A
reasonable jury can conclude that an employer’s reasons were
pretextual and that discrimination was afoot if a plaintiff can
show that an employer’s “investigation, which was central to
and culminated in [the plaintiff’s] termination, was not just
flawed but inexplicably unfair.” Id.
Smith took a number of steps one would expect of an
investigator who sincerely sought to determine what actually
happened. Within hours of the event, Smith interviewed all of
the relevant witnesses and took their written statements. He
formed an incident committee, inspected the accident site, and
took photos. Smith questioned Burley and the other people
who were working at or near the site of the derailment about
precisely what had happened, and wrote a report that resulted
in significant formal charges against both Burley and
Ebersole.
Burley has identified one investigatory step he contends
Smith should have taken but did not: Smith should have
reviewed videotape of the derailment. It is unclear, however,
whether any such videotape existed. The union representative
who appeared on Burley’s behalf at his disciplinary hearing
contended that he was “told” in advance of the hearing “that
security camera video of the incident existed” and that the
14
employee responsible for monitoring the recording equipment
later told him “that AMTRAK had erased the tapes.” J.A. 332
¶ 4. Another employee testified in a deposition that “there
should have been video of everything that went on,” “that if
there was a derailment, [a group of Amtrak personnel] looked
at those videos,” and that “nine times out of ten” Smith would
have reviewed videotape if there was a derailment. J.A. 420,
422, 423. But that witness acknowledged that he never saw
any video of the derailment at issue here, did not see Smith
view the video, did not know how many cameras there were
or where they were placed, and did not know how long any
tapes would be preserved. He asserted “I’m not the video
man,” and identified by name and home town the long-term
Amtrak employee who “was in control of the whole video
system from beginning to the end of it.” J.A. 420. Burley did
not seek to depose that employee or anyone at Amtrak who
could speak authoritatively about video recordings, if any, of
the yard when the derailment occurred.
Even assuming that a relevant video recording existed,
Smith’s failure to review it does not support an inference that
Smith’s actions were motivated by race. Burley has not
identified any fact that he believes the recording would have
revealed that might have affected the disciplinary
proceedings. The key factual omission Burley cites in
Smith’s investigation was Smith’s failure to take into account
that Burley was unaware that Ebersole had departed the
engine. Smith acknowledged that Ebersole was not on the
engine. Even a clear and well lit video taken at close range
would not have revealed what Burley knew about Ebersole’s
whereabouts. Smith’s investigation was not unreliable or
otherwise “inexplicably unfair” without the video recording.
See Mastro, 447 F.3d at 855. In the absence of any reason to
think that a videotape could have revealed any material
information, no reasonable jury could conclude that failing to
15
obtain and review it was an error so obvious it must have been
intentional. See Fischbach, 86 F.3d at 1183.2
D.
Finally, Burley claims that Amtrak disciplined him
significantly more harshly than other, similarly situated white
employees whom he asserts committed infractions of
comparable or greater gravity, and that such differential
treatment could lead a reasonable jury to find that Amtrak
acted with a racially discriminatory motive. Burley first
points to Ebersole, the white conductor who was involved in
the same derailment, whom Burley claims bore more
responsibility for it than he did. Amtrak denied Burley’s
request for a waiver and terminated him. By contrast, Amtrak
granted Ebersole a waiver and suspended him for only fifteen
days. Burley also identifies six white engineers who received
more lenient discipline than he did for infractions he views as
more serious. Amtrak’s more lenient treatment of Ebersole,
and of white engineers in other incidents comparable to his
own, Burley contends, evinces Amtrak’s racially
2
The non-probativeness of potential video evidence to the issue
Burley seeks to dispute defeats Burley’s request for a spoliation
inference. Burley argues that Amtrak’s failure to produce any
videotape of the derailment warrants a negative inference that
Amtrak destroyed videotapes because they were favorable to
Burley. We have recognized that “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). But, in addition to failing to make the case that
there were any tapes of the derailment that were destroyed, Burley
identifies no factual ground for concluding that Smith’s failure to
review tapes was such an obvious error as to support a
discrimination finding, so no spoliation inference is warranted.
16
discriminatory motive and should have precluded summary
judgment in Amtrak’s favor.
The primary flaw in Burley’s attempt to show pretext
through comparator evidence is that it is undisputed that the
Amtrak supervisors who denied the waiver and disciplined
Burley did not know his race. The only individuals involved
in Burley’s disciplinary process with the power to grant or
deny a waiver were General Superintendent Pesce and
Superintendent Michael Sherlock, Pesce’s immediate
subordinate. Either Pesce or Sherlock denied Burley’s waiver
request, though the record does not make clear who. (The
record on the waiver issue is sparse because the collective
bargaining agreement prohibited Amtrak from keeping formal
records about waiver decisions, and nobody at Amtrak recalls
deciding Burley’s or Ebersole’s waiver request.) Pesce
decided Burley’s punishment after his disciplinary hearing.
Burley’s race could not have influenced either the decision to
deny Burley a waiver or the decision to discharge him and
suspend his engineer’s certificate, for it is undisputed that
neither Pesce nor Sherlock knew Burley’s race. See J.A. 195,
282-83 ¶ 59, 300 ¶ 59.
Burley counters with his cat’s paw theory: Even without
knowing Burley’s race, Pesce and Sherlock discriminated
against him because they relied on Smith’s investigation and
hearing testimony and thereby unwittingly gave effect to
Smith’s bias in meting out the discipline. See Griffin v.
Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir.
1998). As we explain above, however, that theory fails
because Burley has not introduced evidence that could
persuade a reasonable jury that Smith discriminated against
Burley.
17
Burley does not dispute that Amtrak took blue signal
violations particularly seriously in order to protect the safety
of employees working on and around the tracks. Pesce and
Sherlock each testified that he would have denied an
engineer’s waiver request in the case of a blue signal
violation, especially where the engineer did not accept
responsibility, because of the severity of such an infraction.
J.A. 183-84, 195. Pesce testified that, for the same reason,
termination and suspension of the engineer’s certificate was
the appropriate discipline under those circumstances.
Burley invokes comparator evidence in an effort to
undercut those explanations. A plaintiff can establish pretext
masking a discriminatory motive by presenting “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. Amtrak’s more
lenient disciplinary treatment of white employees who
violated Amtrak rules does not support the inference that
Pesce and Sherlock discriminated against Burley on account
of his race, however, because the white employees he
identifies are not similarly situated to him. To prove that he is
similarly situated to another employee, a plaintiff “must
demonstrate that [he] and the allegedly similarly situated . . .
employee were charged with offenses of comparable
seriousness.” Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.
1999) (internal quotation marks and citation omitted); see
Coleman v. Donahoe, 667 F.3d 835, 846-47 (7th Cir. 2012).
“A plaintiff must also demonstrate that ‘all of the relevant
aspects of [his] employment situation were nearly identical to
those of the [other]’ employee.” Holbrook, 196 F.3d at 261
(quoting Neuren v. Adduci, Mastriani, Meeks & Schill, 43
F.3d 1507, 1514 (D.C. Cir. 1995)). Factors that bear on
whether someone is an appropriate comparator include the
similarity of the plaintiff’s and the putative comparator’s jobs
18
and job duties, whether they were disciplined by the same
supervisor, and, in cases involving discipline, the similarity of
their offenses. See Coleman, 667 F.3d at 847.
Ebersole is not an apt comparator because Burley has
failed to demonstrate that he and Ebersole were similarly
situated. Burley and Ebersole had different roles and,
consequently, bore different responsibility for causing the
derailment. As a conductor, Ebersole was responsible for
overseeing the train and the crew; Burley, the engineer, was
responsible for operating the engine. The rules required that
Ebersole stay in a position where he could signal Burley; they
required that Burley stop the train if the conductor was not in
a position to signal to him. J.A. 336. Ebersole’s
responsibility, if any, for the derailment derived from his
failure to be in position. Burley’s responsibility, in contrast,
stemmed from his driving the train over an applied derailer.
Given the undisputed evidence of their distinct roles and the
different nature of their violations, Burley has not genuinely
disputed the reasonableness of Amtrak’s decision to treat
Burley as more culpable for the accident than Ebersole.
The other comparator evidence also fails to defeat
Amtrak’s summary judgment motion because Burley is
unable to demonstrate either that other white employees were
found to have committed offenses of comparable seriousness,
or that they were differently disciplined by the same
supervisors who disciplined Burley. Not one of the white
engineers he identified crossed a blue signal. Most did not
commit offenses of even arguably comparable seriousness.
Only one derailed a train, and he was not disciplined by Pesce
or Sherlock. Burley’s proffered comparator evidence thus
cannot permit a reasonable factfinder to conclude that
Amtrak’s nondiscriminatory reason for disciplining Burley for
passing a blue signal more harshly than it disciplined other,
19
white employees who committed different infractions was a
pretext for discrimination.
Burley contends that the mere fact that two employees
had different titles and duties does not necessarily undermine
the probative value of their different treatment. Burley is, as a
general matter, correct. He relies on cases, including
Coleman, 667 F.3d at 849, in which employees with different
responsibilities and titles nonetheless engaged in similar
conduct and were governed by the same rules and standards.
But Burley’s situation is different. Burley’s conduct as
Amtrak reasonably understood it at the time, together with the
high stakes of a blue signal violation, carried enhanced
culpability. For all of these reasons, Amtrak’s more serious
discipline of Burley as compared to the other, white
employees he identifies as putative comparators could not
support a jury conclusion that Amtrak discriminated against
Burley based on his race.
Drawing every justifiable inference in Burley’s favor, as
we must, we find no basis in the record upon which a
reasonable factfinder could conclude that whatever
investigative flaws or unfairness Burley may have suffered
relating to this incident were so unexplained or otherwise
striking as to suggest that Amtrak was motivated by Burley’s
race to discipline him.
***
For the foregoing reasons we affirm the decision of the
district court.
So ordered.