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ARMANDO A. PANDOLA, JR.

Identification No.: 27608

400 Sterling Commerce Center ATTORNEY FOR PLAINTIFF

1819 JFK Boulevard

Philadelphia, Pa 19103

(215) 568-5010

_________________________________________________________________

JEROLD WASHINGTON UNITED STATES DISTRICT COURT

64 Melrose Avenue FOR THE EASTERN DISTRICT OF

Lansdowne, PA 19051 PENNSYLVANIA

 

Vs. NO. 02-4451

NATIONAL RAILROAD PASSENGER

CORPORATION D/B/A AMTRAK

30th & Market Streets

Philadelphia, PA 19104

CIVIL ACTION COMPLAINT

1. This is an action to vindicate violations of plaintiff’s Civil Rights and

to redress the unlawful and discriminatory conduct and employment

practices of the defendants. This action arises out of the hostile work

environment and discriminatory employment practices of the defendants and

their employees against the plaintiff based on plaintiff’s race and national

origin, in whole or in part. These actions constitute a violation under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e

et seq., and the Civil Rights Act of 1866, as amended by the Civil Rights

Restoration Act of 1991, 42 U.S.C. Section 1981, the Pennsylvania Human

Relations Act and local laws and ordinances.

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PARTIES

2. Plaintiff is a citizen of the Commonwealth of Pennsylvania and

the United States who resides at the above-captioned address. At all times

relevant herein, Mr. WASHINGTON was an employee of the defendant.

3. Defendant, NATIONAL RAILROAD PASSENGER

CORPORATION D/B/A AMTRAK (hereinafter "NRPC") is an entity organized

and existing under the laws of the Commonwealth of Pennsylvania.

2. At all relevant times, defendant employed in excess of fifteen

employees and was an employer within the meaning of Title VII of the Civil

Rights Act of 1964, as amended.

JURISDICTION AND VENUE

3. This action, in part, is authorized and instituted pursuant to Title VII

of the Civil Rights Act of 1964, as amended and the Civil Rights Act of 1866

as amended by the Civil Rights Restoration Act of 1991 and the Common Law

of the Commonwealth of Pennsylvania and the Pennsylvania Human

Relations Act.

4. The jurisdiction of this Court is predicated upon 28 U.S.C. Section

1331 and 1343, to redress the unlawful depravation of plaintiff’s rights

secured, guaranteed and protected by Federal Law. This Court may also

exercise pendant jurisdiction over plaintiff’s State Law claims.

5. Venue is proper in the United States District Court for the Eastern

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District of Pennsylvania pursuant to 28 U.S.C. Section 1391(b) wherein

plaintiff resides, all defendants regularly conduct business and where all the

relevant conduct occurred.

ADMINISTRATIVE PREREQUISITES

6. Mr. WASHINGTON has complied with all of the administrative

prerequisites to action under Section 706 of Title VII of the Civil Rights Act of

1964 as amended and the Pennsylvania Human Relations Act in that Mr.

WASHINGTON filed a timely formal charge of discrimination with the

Pennsylvania Human Relations Commission at Number E99583D which was

jointly filed with the Equal Employment Opportunity Commission at Number

17FA12743.

7. Mr. WASHINGTON promptly and diligently accommodated all

requests for information and fully cooperated in the above-stated agency

investigation of this matter.

8. Mr. WASHINGTON has exhausted all available administrative

remedies in accordance with the aforementioned statutes prior to instituting

this Civil Action. Mr. WASHINGTON formerly requested a notice of right to

sue.

9. On or about MAY 14, 2002, Mr. WASHINGTON, in c/o his attorney,

received a right to sue letter from the United States EEOC.

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FACTUAL ALLEGATIONS

10. Plaintiff, Richard WASHINGTON, was employed by defendant

from May, 1999 to the present.

11. At all relevant times, all matters regarding compensation, terms,

conditions, rights and privileges of Mr. Washington's employment were

governed and controlled by defendant.

12. Upon information and belief and at all relevant times, various

supervisors and personnel employees, including named defendants, were

acting as the agents, servants and/or employees of defendant which is liable

for the acts and admissions of these individuals pursuant to the principles of

ratification, respondeat superior and actual and/or implied agency.

13. At all relevant times, Mr. WASHINGTON fully, adequately and

completely performed all of the functions, duties of responsibilities of his

employment with defendant.

14. Mr. WASHINGTON has a long history and record of excellent

performance evaluations.

15. From November, 2000, plaintiff had been continuously

subjected to a hostile work environment based upon his race and national

origin.

16. Upon information and belief and as set forth herein, defendant

applies a discriminatory policy regarding hostile work environments that

relate to race or national origin.

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17. On or about November 30, 2000, a co-worker, Jim Hogan,

made inappropriate racial remarks to plaintiff, making reference to a

confederate flag that was located in the back window of a truck used in the

exterminating business. Mr. Hogan told plaintiff that “y’all are the pest to

be exterminated.”

18. On that same day, Mr. Hogan used tape to tie plaintiff to the

driver seat of a truck. After another employee released plaintiff, Mr. Hogan

came up to plaintiff, and was holding a noose in his hand. He asked

plaintiff if I knew what it was for, and started to laugh. He said that the

noose was “to hang your ass with.”

19. These racial remarks were part of a hostile environment in the

Lancaster Division which plaintiff has experienced, and which other

African-American or minority workers have experienced. The hostile work

environment is due to plaintiff's race and national origin. As a result of this

hostile work environment, which is of a continuing nature, plaintiff can no

longer work at the Lancaster Division.

20. There was a job available at the Lancaster Division, which

would represent a promotion for plaintiff. This job was given to a person

with less seniority who is not African-American. Plaintiff had requested the

job, was qualified for the job and had more seniority than the person who

was given the job, yet was refused the job because of his race.

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21. Plaintiff had complained to upper management about this

discrimination, but no action has been taken by management to correct

this problem.

22. Plaintiff's race is the cause for defendant’s actions against

him, and that management has tolerated those actions, especially at the

Lancaster Division location

23. Defendants have maintained, acquiesced in the maintaining of, or

failed to take appropriate required action to eliminate a general and

consistent pattern and practice of racial discrimination against AfricanAmerican employees in the Lancaster Division of the NRPC. Furthermore,

defendant's policies and practices concerning job availability and

qualifications have a disparate impact on African-Americans, making it more

difficult for them to obtain higher paying jobs and job advancements.

24. Such pattern and practice has been consistently manifested for at

least the two years preceding the filing of plaintiff’s administrative complaint,

including but not limited to actions of intimidation against African-American

employees for the performance of their duties, and job availability and

qualifications.

25. Consistent with and pursuant to that general policy and practice,

plaintiff was discriminated against because of his race and because of his

national origin.

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26. The pattern of racial and ethnic slurs constituted a continuing

pattern of conduct that created an offensive and hostile working environment

and interfered with the plaintiff’s ability to perform his assigned duties.

27. Plaintiff complained of the acts against him, but could obtain no

 relief. As a result of the hostile work environment, plaintiff was forced to

leave the Lancaster Division. Plaintiff was forced to do this only after he had

made numerous attempts to have the defendant resolve the problem of racial

and ethnic discrimination, slurs and hostile environment which existed at the

Lancaster Division and which posed a threat to plaintiff.

28. The continuing course of defendant's conduct as set forth above

has damaged plaintiff by increased inconvenience and expense in

performing his assigned duties, by depriving him of opportunities for

professional advancement and over-time pay, by subjecting him to

humiliation and emotional distress, by damaging his personal reputation, by

damaging his professional reputation and by aversely effecting his earning

capacity.

29. Defendant has acted and continues to discriminate against the

plaintiff because of plaintiff’s race and national origin.

COUNT ONE

EMPLOYMENT DISCRIMINATION – TITILE VII

AND SECTION 1983

30. Plaintiff incorporates by reference the allegation set forth in the

preceding paragraphs of the complaint as though each were fully set forth

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herein.

31. Defendants have discriminated against plaintiff in terms and

conditions of his employment because of his race and national origin, all in

violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil

Rights Act of 1991.

32. The defendant’s conduct was a direct and proximate

cause of the injuries, damages and harm suffered by the plaintiff.

33. As a result of the discriminatory employment practices engaged in

by the defendant to plaintiff’s federally protected rights, plaintiff is entitled to

all of the damages and other remedies available under Title VII of the Civil

Rights Act of 1964, as amended.

34. Based upon information and belief, the defendants have treated

plaintiff differently than they have treated other complainants of racial and

ethnic harassment where they have found that the complaints of racial and

ethnic harassment were true and that the complainant’s safety was in

jeopardy.

35. Based upon information and belief, defendants were more vigorous

and took sterner action against employees who have made threats,

derogatory comments or slurs against individuals of a non- minority race or

ethnic origin.

36. As a direct and proximate result of the foregoing, defendants

constructively discharged plaintiff from his position at the Lancaster

Division. As a direct and proximate result of the foregoing, plaintiff has

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suffered emotional and mental anguish. Furthermore, plaintiff has been, is

being and will in the future be deprived of income in the form of wages and

of prospective retirement benefits and benefits due him as an employee

solely because of defendant’s conduct as set forth above.

37. The above-stated actions by the defendant were a violation of Title

VII’s prohibition against discrimination in employment based, in whole or in

part, upon an employee’s race or national origin.

38. During his employment with the defendant, plaintiff was a member

of a class protected under Title VII against race and national origin

discrimination.

39. Defendants failed to exercise reasonable care to prevent and

correct promptly any racial or national origin harassing behavior.

Furthermore, plaintiff took advantage of all preventive or corrective

opportunities provided by the employer to avoid harm.

40. Plaintiff was treated in a disparate manner and subject to

defendant’s unfair policies and practices in that he was treated in a manner

unlike other employees similarly situated with defendant who were of a nonminority race or other national origin.

41. As a result of defendant’s employment policies, procedures and

practices, plaintiff was unjustly and discriminatorily deprived of Equal

Employment Opportunities because of his race and national origin. Plaintiff

was deprived of due process of law and other rights guaranteed by the Fifth

Amendment and 42 U.S.C.A. 1983.

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42. Defendant intentionally and/or with reckless indifference engaged

in the above-stated discriminatory practices against plaintiff, contrary to

his federally protected rights as guaranteed to him under the Fifth

Amendment and Section 1983 of the Civil Rights Act and Title VII of the

Civil Rights Act. The intentional and discriminatory conduct of defendant

was willful, wanting, deliberate, malicious, egregious and outrageous.

WHEREFORE, plaintiff demands judgment against the defendants,

jointly and severally, in an amount in excess of $100,000.00 plus costs,

interest, delay damages, attorney’s fees and all other remedies available to

plaintiff pursuant to the law.

COUNT TWO

PENNSYLVANIA HUMAN RELATIONS ACT

43. Plaintiff hereby incorporates all of the preceding paragraphs as

though each were fully set forth herein.

44. Defendant is subject to Pennsylvania Laws concerning

discrimination in employment.

45. The above-stated allegations constitute a violation of both

Pennsylvania and local Laws regarding discrimination regarding race and

national arrogant.

46. The above-state individual defendants failed to take any action to

prevent further discrimination by employees of the NRPC who were under

their supervision, or over whom they had the power to prevent such

discrimination against the plaintiff.

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WHEREFORE, plaintiff demands judgment against the defendants,

jointly and severally, in an amount in excess of $100,000.00 plus costs,

interest, delay damages, attorney’s fees and all other remedies available

under the law.

COUNT THREE

VIOLATION OF CONTRACT

47. Plaintiff hereby incorporates all of the preceding paragraphs as

though each were fully set forth herein.

48. Defendants have violated various terms of the contract of

employment which plaintiff had with defendant, NRPC, it violated various

provisions regarding the investigation of complaints, and the proper and

necessary steps to eliminate any and all racial or ethnic discrimination.

49. These contractual violations caused damages to the plaintiff as

set forth above.

WHEREFORE, plaintiff demands judgment against the defendants,

jointly and severally, in an amount in excess of $100,000.00 plus costs,

interest, delay damages, attorney’s fees and all other remedies available at

law.

COUNT FOUR

UNLAWFUL PRACTICES AND POLICIES

50. Plaintiff incorporates by reference the allegations set forth in all

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of the other paragraphs of the complaint as though each were fully set

forth herein.

51. Plaintiff is a member of a protected class, African-Americans.

52. Plaintiff was qualified for a job for which he applied at the

Lancaster Division and for other jobs, including truck driver, assistant

conductor and engineer.

53. Plaintiff was rejected for various jobs or does not qualify for

them under defendant's policies and practices despite sufficient

qualifications to perform the duties of the position.

54. Defendant maintains an employment policy, practice or

selection criteria for the above-stated jobs and other jobs which is facially

neutral.

55. The above-stated policy, practice or selection criteria, although

neutral on its face, falls more harshly on the plaintiff’s protected class,

African-Americans, in that it requires persons to live at or near the Division

in which they are employed and each Division has its own criteria and

hiring practices.

56. Plaintiff has suffered damages as a result of defendant’s conduct

as stated-above and set forth in its practices, policies and selection criteria

for jobs. Plaintiff has been denied employment or has been unable to

advance himself within the Defendant Corporation because of these

policies.

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WHEREFORE, plaintiff demands judgment in an amount in excess of

One Hundred Thousand ($100,000.00) Dollars, plus back pay, front pay,

compensatory damages, punitive damages and all other relief available

under the law.

Respectfully submitted by,

__________________________________

ARMANDO A. PANDOLA, JR., ESQUIRE

Attorney for Plaintiff

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