1

 After Washington filed his discrimination complaint against his co-worker Mr. Hogan,

Amtrak promptly investigated the complaint and resolved the dispute in his favor. Moreover,

Amtrak immediately started a termination proceeding against Mr. Hogan, the offending coworker. It is undisputed that Plaintiff was not subject to any other discriminatory conduct by his

co-worker(s) thereafter. Therefore, as a matter of law, there is no respondent superior liability to

be applied against Amtrak for actions taken by Plaintiff’s co-workers.

2

 In Count IV of Plaintiff’s Complaint, Plaintiff alleges that Amtrak maintains an

employment policy, practice or election criteria which is facially neutral, but which has a

disparate impact on African Americans. During oral argument, Plaintiff’s Counsel advised that

he was no longer proceeding on this claim. In fact, there is no evidence to support the claim. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEROLD WASHINGTON :

Plaintiff, : CIVIL ACTION NO. 02-CV-4451

 :

vs. :

 :

NATIONAL RAILROAD :

PASSENGER CORP. D/B/A AMTRAK :

Defendant. :

ORDER

AND NOW, this _____ day of February 2004, upon consideration of National Railroad

Passenger Corporation’s (“Amtrak”) Motion for Summary Judgment (Doc. 23), Plaintiff’s response

thereto (Doc. 24), and Defendant’s reply brief (Doc. 25), IT IS HEREBY ORDERED AND

DECREED that Defendant’s Motion is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that:

1. Defendant’s Motion for Leave to file a Reply Brief (Doc. 25) is GRANTED, so

considered.

2. Defendant’s Motion for Summary Judgment on Plaintiff’sRacial andNational Origin

Discrimination Claims based upon co-worker created hostile environment is

GRANTED.

1

3. Defendant’s Motion for Summary Judgment on Plaintiff’s Disparate Impact Claim

is GRANTED.

2

Case 2:02-cv-04451-CG Document 31 Filed 03/01/2004 Page 1 of 2
Therefore, I grant Defendant’s motion for summary judgment on Plaintiff’s disparate impact

claim.

3

 Plaintiff claims that he was discriminated against by Amtrak and denied promotion to a

Boom Truck Operator. Plaintiff possessed the requisite commercial driver’s license. The

position also required that “someone in authority review an applicant’s actual performance of

handling a boom truck and confirm that the applicant could do the job.” See Pl. Brief at 31. 

Washington admits that he had not been so certified, but claims that he was capable of operating

a boom truck because he had done so previously at the Lancaster division. During oral argument,

Defendant conceded that an unqualified non-minority was promoted to the Boom Truck Operator

position. It is also Plaintiff’s position that his supervisor delayed the qualifying process as to

Plaintiff, so that he could promote the non-qualified white applicant. On this record, summary

judgment is not authorized. This is so even when Defendant’s argument that Plaintiff would

have been entitled to the position for only a few weeks because an employee with greater

seniority would have bumped him in accordance with existing procedures. It is true, that a more

senior employee bumped the non-minority from the position; however, it is only speculation that

he would have bumped Mr. Washington from the position. Accordingly, I deny Defendant’s

motion for summary judgment on this claim.

4

 Plaintiff also claims that he was discriminated against when he was denied promotion

to Assistant Engineer positions. Plaintiff’s application showed that he was qualified for the

position. Other qualified applicants had the advantage of being interviewed for the job, whereas

Mr. Washington for some reason that does not appear of record was not given the opportunity to

interview. On summary judgment, it is not clear that the interview could not had made a

difference in Mr. Washington’s favor. Therefore, I deny Defendant’s motion for summary

judgment

4. Defendant’s Motion for Summary Judgment on Plaintiff’s Discrimination Claim in

connection with the Boom Truck Operator Position is DENIED.

3

5. Defendant’s Motion for Summary Judgment on Plaintiff’s Discrimination Claims in

connection with the Assistant Engineer Positions is DENIED.

4

6. This matter is referred to Magistrate Judge Diane M. Welsh for a Settlement

Conference, and if settlement is not accomplished, the Courtroom Deputy in

consultation with Counsel shall schedule the claims for trial that have survived the

motion for summary judgment. 

BY THE COURT:

 

 CLIFFORD SCOTT GREEN, S.J.

Case 2:02-cv-04451-CG Document 31 Filed 03/01/2004 Page 2 of 2