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

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

ORDER

AND NOW, this day of , 2003, it is

hereby ORDERED and DECREED that Defendant’s Motion for Summary

Judgment is denied.

BY THE COURT:

_________________________________

 J.

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 1 of 52
2

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

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

PLAINTIFF’S ANSWER TO DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

1. Admitted in part; denied in part. It is admitted that plaintiff 

worked for Amtrak and that in December, 2000, he filed an Internal

Complaint of racial harassment. Furthermore, it is admitted that the

defendant investigated plaintiff’s complaint and determined that plaintiff

was justified in bringing his complaint. As a result of the investigation,

only one individual was charged with a violation of defendant’s racial

harassment policies and that individual resigned before the hearing

concerning those charges began. All other facts are in dispute.

2. Admitted in part; denied in part. It is admitted that the plaintiff did 

not work with Mr. Hogan after he filed his complaint. It is specifically

denied that plaintiff was satisfied with the results of what occurred. In fact,

it was clear that the harassment that was initiated by Mr. Hogan could not

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 2 of 52
3

have taken place but for an atmosphere of racial harassment that existed at

the Lancaster Division. This atmosphere of racial animosity against

African-Americans was exemplified by the fact that when plaintiff brought

these accusations against Mr. Hogan every member of the Lancaster

Division supported Mr. Hogan rather than the plaintiff. Numerous

statements were taken from individuals and those statements clearly

indicated that the individuals working at the Lancaster Division lied and

twisted the facts in order to support Mr. Hogan. Additionally, the

investigation revealed that the supervisors at this location did nothing to

advance the corporate policy of racial diversity and, in fact, openly

supported the racists who worked at the Lancaster Division. One of these

supervisors has testified that when he hears racial jokes or comments, he

turns the other way. By not participating in the racial harassment, he

believes that he has done nothing wrong; in fact, he has failed to

administer the anti-discrimination policies of the defendant which requires

supervisors to report any violation of that policy. In fact, every supervisor

who has been deposed has admitted that they have done nothing to

enforce that policy. The evidence shows that the defendant gives mere lip

service to its anti-racial discrimination policy.

3. Admitted in part; denied in part. Plaintiff's complaint speaks for 

itself.

4. Denied. Any reasonable fact-finder must conclude that 

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 3 of 52
4

defendant has failed to effectively put into practice its alleged policy of

non-discrimination of African-Americans and other minorities. Defendant’s

prosecution of Mr. Hogan has done nothing to remedy the situation that

existed and still exists at Lancaster Division where blacks are practically

non-existent because of the hostile atmosphere that minorities must

endure to work at this location.

5. Denied. For the first several months of this litigation, defendant 

denied that the position of boom truck driver even existed. Thereafter, it

denied that the plaintiff applied for any jobs. In fact, it responded to the

EEOC by wrongfully stating that plaintiff never bid on any jobs. Now, at the

conclusion of the litigation, defendants have finally forwarded information

that indicates that plaintiff has applied for over twenty jobs. Regarding the

boom truck driver position, plaintiff has testified that an individual who did

not have a commercial vehicle license was given this position and then

trained on it and that he was not given an opportunity to apply for the job.

This is in direct contravention to the proper policies and procedures that

defendant had agreed to as a result of the Thorton Decree.

6. Denied. Plaintiff has requested information concerning the 

number of assistant engineer positions that exist in each of the defendant’s

divisions, and the number of African-Americans who have those positions

at each division. Plaintiff requested this information so that a

determination could be made if there was a correlation between the number

of minorities who hold assistant engineer provisions in each of the

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 4 of 52
5

defendant's local divisions, and that local division's policy as to where the

assistant engineer must live. Plaintiff requested this information at

Request No. 24. It never received this information.

7. Denied. Defendant’s general allegation that all claims asserted by 

the plaintiff, even those which are not addressed in defendant's Motion for

Summary Judgment, should be dismissed is without merit, and contrary to

the rules concerning Motions for Summary Judgment.

8. In support of its opposition to defendant’s Motion for Summary 

Judgment, plaintiff incorporates the attached memorandum of law.

WHEREFORE, plaintiff respectfully request that this Honorable Court

deny defendant’s Motion for Summary Judgment.

Respectfully submitted by,

ARMANDO A. PANDOLA, JR., ESQUIRE

Attorney for Plaintiff 

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 5 of 52
6

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

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

MEMORANDUM OF LAW

I. Statement of Facts

On May 10, 1999, plaintiff began working for the defendant as a 

trackman. In December, 1999, he was transferred to the Lancaster Division

for the first time. He was sent to the Lancaster Division to perform the

duties of a bus driver. As soon as he arrived, he was told to leave since a

more senior person was going to be given the job. This was Lancaster

Division’s first attempt to remove Mr. Washington from the division by

failing to give to him a job for which he was entitled and qualified. 

The Lancaster Division has two branches, one in Harrisburg and one

in Lancaster. Plaintiff was always assigned to the Lancaster branch. In

Lancaster, he was the only minority who was working "outside", that is, in

a non-office position.

Two weeks later, he returned to the Lancaster Division as the bus

driver. The person who had more seniority than him who had been acting

as the bus driver for the past two weeks was, in fact, not qualified since he

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 6 of 52
7

did not have a commercial driver’s license. It was only when this individual

was fined and his license suspended by the Pennsylvania Department of

Transportation that the Lancaster Division agreed that the plaintiff could

act as the bus driver instead of this individual (Washington, 18-19).

After serving as the bus driver at the Lancaster Division for

approximately three months, plaintiff was transferred out of the Lancaster

Division (Washington, 22)1. 

In August, 2000, he returned to the Lancaster Division but only

stayed there for approximately one month because of the racial hostility

that existed there (Washington, 26-50). Mr. Washington was subject to a

series of incidents at the Lancaster Division, on almost a daily basis, that

made clear the hostile working environment at the Lancaster Division for

African-Americans and minorities. There were numerous occasions on

which Mr. Washington noticed that Caucasian employees would ask

questions and would be given assistance by co-workers whereas, if he

asked a question, he was told that he would have to go to the foreman, and

not to bother people. There were many jokes and other instances of

inappropriate comments made by co-workers. These included referring to

African-Americans as “raccoons”. There were references to Mr.

Washington having a late model car and the fact that he must be doing

 

1 Plaintiff has attached an Exhibit summary for the convenience of the Court. All

documents or depositions referenced in this Answer may be found in the Exhibits except

for the deposition of Andrew McCullom which was taken after defendant filed this Motion.

McCollum's deposition had been scheduled several weeks ago, but he failed to appear.

Plaintiff's counsel certifies that all references to McCollum's testimony are true and

correct and that a copy of his deposition will be forwarded to the Court as soon as it is

received.

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 7 of 52
8

some other kind of business, possibly drugs. Mr. Washington rightfully

perceived that his co-workers' comments concerning inner-city life were

meant to reflect poorly upon him and other African-Americans. Also,

because of the defendant’s policy of allowing more senior people to

“bump” less senior people out of jobs, Mr. Washington noticed that

everyone became very aware of his start date so that they could notify a

Caucasian with more seniority that Mr. Washington could be bumped out of

Lancaster.

Plaintiff returned to the Lancaster Division in the Fall of 2000. He

was working as a trackman and a bus driver. The racial incidents became

more intense and culminated when a co-worker, Hogan, talked about

“exterminating” African-Americans and sought to place a noose around Mr.

Washington’s head.

When Mr. Washington complained of this incredible behavior, an

investigation was begun of this matter.

During the course of this investigation, defendants interviewed

plaintiff’s co-workers at the Lancaster Division. Everyone that was

interviewed backed Mr. Hogan and either claimed that he was only making

a bad joke or that the incident never occurred. In fact, the foreman of the

gang which included both the plaintiff and Mr. Hogan denied that the

incident ever took place and has testified that he never got involved in

anything concerning this incident and, in fact,:

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 8 of 52
9

I tried to stay out of it once it happened because even though I

was the foreman and it involved – it didn’t concern me.

(Rhodes, 42).

The foreman of the track "gang" was Bruce Rhodes. He verified his

duties as the foreman:

 11 A. You're responsible for making sure

12 they wear their safety gear. You're responsible

 13 to make sure that there is no horseplay because

 14 it increases the chance of somebody getting

 15 hurt. You're responsible to make sure that

 16 everybody complies with Amtrak's rules.

(Rhodes, 22)

Rhodes was asked about what was done to ensure that the

defendant's safety policies were enforced. His answer was that the

defendant effectively enforced its safety rules:

17 Q. You mentioned safety gear, are there

 18 safety rules that they have to comply with?

 19 A. Yes.

 20 Q. How do you enforce those?

 21 A. If you see somebody breaking a rule,

 22 you let them know that you can't do that, it's

 23 breaking a rule. If they insist, you would stop

 24 work and go to the tracks so that nobody gets

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 9 of 52
10

(Rhodes, 22)

 1 hurt and then I tell Bernie and let him handle

 2 it.

 3 Q. Are there briefings regarding every

 4 job?

 5 A. Yes.

 6 Q. So that's part of the safety

 7 features?

 8 A. Yes.

 9 Q. Are there any regular meetings

 10 regarding those issues?

 11 A. Yes.

 (Rhodes, 23)

The contrast between defendant's safety policies and its diversity

policy is striking. There are no regular meetings regarding its diversity

policies. The only diversity training given to Rhodes was a one-day seminar,

mandated by the Thorton decree. In fact, when Bernie Reading, the person in

charge of the Lancaster Division, was asked about training regarding

defendant's diversity policy, he could not understand the question:

19 Q. Now, is there any kind of special

 20 training that is done at the Lancaster division

 21 regarding Amtrak's racial diversity policy?

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 10 of 52
11

 22 A. I don't understand the question.

(Reading, 22)

The depositions of Bernie Reading, supervisor for the Lancaster

Division, and Bruce Rhodes, foreman of the track gang to which plaintiff

was assigned, present adequate evidence to defeat the defendant’s Motion

for Summary Judgment.

Mr. Reading testified that he, a supervisor, is charged with ensuring

that the defendant’s policies and procedures are enforced at the Lancaster

Division. (Reading, 13).

Regarding the statistics that are kept by defendant regarding the

defendant’s “diversity” policy, Mr. Reading testified that he could not even

say how many minorities were at the Lancaster Division in 2000 (Reading,

14), cannot remember if plaintiff was the only African-American at

Lancaster when he worked there (Reading, 17), but "believes" that he was

(Reading, 48). Most importantly, the defendant does not keep any statistics

on how many African-Americans bid for jobs at Lancaster (Reading, 19).

As a supervisor, he was given two or three days training pursuant to

the Thorton Decree regarding defendant’s diversity policy (Reading, 23).

He learned that making jokes about someone’s racial or ethnic background

was not permitted (Reading, 25) and stated that he never heard such jokes

at the Lancaster Division by anyone (Reading, 26). In spite of the fact that a

worker under his supervision (Hogan) was found by the defendant's own

investigation to have openly harassed plaintiff because he was AfricanCase 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 11 of 52
12

American, he admitted that no one at Lancaster supported the plaintiff in

his accusations of racial harassment (Reading, 41). 

Regarding the claim made by the plaintiff of racial hostility at the

Lancaster Division, Reading, as the person in charge of the entire division,

stated that he never saw the report issued by the Business Diversity

Department that investigated the plaintiff’s claims of racial harassment

(Reading, 43). He has no idea what the defendant's policy is regarding his

involvement in such investigation. He does not know if the supervisor of a

division has a duty to review the report concerning claims of racial

harassment (Reading, 44). He had his head so deeply buried in the sand

that he admitted that he never asked for the report concerning the

investigation of plaintiff's complaint and never wanted to see it (Reading,

44). He was never given copies of any statements made by the other coworkers who were interviewed regarding plaintiff’s complaint (Reading, 60).

Regarding his own statement concerning the plaintiff’s complaint,

Reading admitted that he knew about the confederate flag incident in which

plaintiff claimed that Hogan in the presence of co-workers pointed to a

confederate flag that was on the back of a pest extermination truck and

said that that flag was meant to exterminate “you’all” pointing to

Washington. He never mentioned that incident in the statement that he

gave (Reading, 45).

Concerning this alleged “strict policy against racial harassment and

discrimination”, Reading admitted that he never even tried to retrain any of

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 12 of 52
13

the members of the gang to which plaintiff was assigned after this incident

(Reading, 46). There are no posters or other documents regarding the antiracial discrimination policy at the Lancaster Division (Reading, 47).

 Reading never saw Hogan’s letter of resignation in which Hogan

essentially claimed that he did nothing wrong and denied Washington’s

allegations. In fact, Reading was given a copy of the letter which was

placed in Hogan’s personnel file, but he never even bothered to read it

(Reading 48). 

Reading admitted that he is the one in charge of ensuring that there

is no racial discrimination or harassment at Lancaster. Even so, within

the Lancaster Division, no investigation was conducted concerning racial

harassment (Reading, 51). There is no “pro-active” policy of seeking out

and eliminating racial discrimination and harassment at the Lancaster

Division but, instead, Reading admits that he sits back and waits until a

claim is made and then would send the complaint to the “Business

Diversity Office” (Reading, 52).

Reading claims that he never heard a racial remark at Lancaster.

Reading admits that he has never brought up the issue of prejudice against

African- Americans with any of the employees at the Lancaster Division to

see how they would react even though he admits that on those occasions

when he does walk among those people who work at the Lancaster

Division, he knows that they act differently than they normally do (Reading,

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 13 of 52
14

54). He does nothing to attempt to determine how the employees act

toward minority employees.

Contrasting what Reading does as a supervisor regarding safety with

what he does regarding the diversity policy can only lead to one

conclusion: the defendant enforces its safety policy but not its diversity

policy. Reading goes on to explain, in detail, the “pro-active” measures

that are taken by the defendant and its supervisors to enforce its safety

program (Reading, 55). Reading actively seeks out potential maintenance

problems and safety problems and attempts to remedy those problems

before a passenger or employee becomes injured (Reading, 55-56):

2 A. We have safety meetings once a

 3 month. If there's any safety directives that

 4 come out, I address it with the foreman. Each

 5 morning they have a job briefing to go over the

 6 particular job they're doing, the unsafe hazards,

 7 what tools they'll be using. If there is an

 8 injury on my subdivision, we go over the injury

 9 in detail to prevent it from happening again.

 10 Q. What about preventative maintenance,

 11 do you do that?

 12 A. The employees are instructed to

 13 check all tools before they start work.

 14 Q. How about with regard to the tracks,

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 14 of 52
15

 15 I mean what kind of safety is done with regard to

 16 that to ensure that the tracks remain safe?

 17 A. I have six track inspectors, they

 18 inspect the track twice a week and they report an

 19 unsafe condition, I send the gangs immediately to

 20 repair the unsafe condition.

 21 Q. Are gangs primary involved in that

 22 type of work in repairing unsafe conditions?

 23 A. In my area?

 24 Q. In your area.

 

 (Reading, 55)

 1 A. In Lancaster, yes. We are a

 2 maintenance force, not a production force.

 3 Q. So gangs usually go out and when

 4 they go out they're going out to repair some kind

 5 of problem with the track?

 6 A. Yes.

 7 Q. You stated how you actually actively

 8 find those problems by having those track

 9 inspectors, so they see a problem, they report it

 10 to you, you assign a gang to it, the gang goes

 11 out and repairs it?

 12 MR. EVANS: Objection to the

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 15 of 52
16

 13 form.

14 THE WITNESS: Yes.

(Reading, 56)

The most informative fact that Reading stated in his deposition was

that he, himself, did not believe that the plaintiff was racially harassed but,

rather, believed that it was mere “horseplay”, something that is common

among employees according to Reading (Reading, 60-61). 

In direct contrast to this statement, Bruce Rhodes who is with the

men on a daily basis and was Washington's and Hogan's immediate

supervisor, testified that he has not seen “horseplay” among the

employees (Rhodes, 21). It's too dangerous.

Regarding the defendant’s diversity policy, Rhodes confirmed that

there was nothing ever posted at the Lancaster Division concerning that

policy (Rhodes, 26). There were no regular meetings concerning the

diversity policy (Rhodes, 27). 

While he believes that the plaintiff did an honest days work (Rhodes,

28), he, too, did not believe the plaintiff’s accusations of racial harassment

and believed that the plaintiff was just trying to make money. He did not

believe that anything happened (Rhodes, 42).

He had this belief that Mr. Washington was lying not because he did

any investigation concerning Mr. Washington’s claims. When he was told

about the complaint made by Mr. Washington, he never even bothered to

find out from Bernie Reading the nature of the complaint (Rhodes, 33). 

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 16 of 52
17

Regarding the noose that was used to intimidate Mr. Washington, Rhodes

claimed that he saw the noose on the bus the day before Halloween2 and

told the employees that it had to come down. He thought it was a

Halloween prank (Rhodes, 37-40). He never asked Hogan about the matter

because “it didn’t concern me” (Rhodes, 41).

In this internal statement that he gave, Rhodes claimed that he,

himself, put the noose on the bus to be used at work. Then, on Halloween,

he saw the nooses on the bus. Most tellingly, he told other gang members

to take the noose down from the bus because someone might get the

wrong idea:

 2 Q. What did you mean by the wrong idea?

 3 A. I just felt that maybe if somebody

 4 seen a noose hanging then they may get the idea

 5 that somebody else in the gang didn't want him

6 around for whatever reason.

(Rhodes, 55)

The above-stated testimony, taken under oath, is the most accurate

evidence of what the noose, the extermination truck, the wrapping of his

body in a chair and all of the other harassing conduct that plaintiff had to

endure at the Lancaster Division were leading to – his life was being

threatened. 

 

2 The 'noose" threat was made by Hogan in early December, many weeks after Halloween,

October 31. This was Rhodes attempt to explain why the noose was on the bus (just a

Halloween prank) yet still back Hogan.

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 17 of 52
18

Working on a track gang on a railroad is a very dangerous job. Coworkers are very dependent on each other to assist each other and look

out for each other. Without the cooperation of the other co-workers, it is

very easy to become injured on the job; when those other co-workers are

actually looking for a way to harm you, it is impossible to avoid being

injured.

This evidence clearly indicates the nature of the threats that were

made against Mr. Washington by the Lancaster gang. While those threats

were directly made by one individual of that gang, all of the other members

of that gang colluded in it by their presence, as did Mr. Rhodes, himself, as

the supervisor. He was present everyday on the job and was fully aware of

the conduct of the plaintiff’s co-workers.

Eventually, Mr. Washington did “get the idea that somebody else in

the gang didn’t want him around for whatever reason.” The reason was

obvious. It was Mr. Washington’s race.

Recently, the deposition of James Herndon was taken. Mr. Herndon

was Mr. Reading’s supervisor (Herndon, 12). He confirmed that he never

conducted an investigation concerning this matter; in fact, he had no idea

why his deposition was being taken (Herndon, 13-14). He never received a

copy of the investigation concerning this matter (Herndon, 37). While he

did speak with Reading, he could remember nothing of their conversation

concerning it. He never spoke with anyone else concerning it. He

continually complained that these events occurred years ago, and he could

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 18 of 52
19

not remember any conversation that he had concerning it, nor even the

details of the accusations that were made by Mr. Washington. He insisted

that he could not remember anything even though he claimed that this was

one of the very few complaints of racial discrimination that occurred while

he has been in charge of this division (Herndon, 36). His selective memory

is part of the defendant's actual practice concerning racial harassment: do

the minimum necessary then forget about it (Herndon, 19-33).

Mr. Herndon admitted that it was a violation of the defendant’s

policies and procedures to lie to an investigator who was conducting an

investigation into a claim of racial harassment (Herndon, 38-39). When

asked for any specific information regarding defendant’s policies against

racial harassment and discrimination, he could not even summarize

defendant’s policy. It was obvious that while he was given a cursory

training course in the benefits of diversity in the workplace because of the

Thorton Consent Decree, he was not given any effective training or

encouraged to actually be aware and know of the defendant’s policies

concerning racial discrimination (Herndon, 17-19).

Regarding plaintiff's claim that a white employee was given the job of

Boom Truck Operator even though it required a Commercial Driver's

License (CDL) and the white employee did not have one while Washington

did have one, Herndon confirmed that Washington should have been given

the job, even if the white employee had more seniority because

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 19 of 52
20

Washington had the CDL that was a requirement of the job (Herndon, 42-

43)

In Section II. A. of defendant's Memorandum of Law, defendant sets

forth its policy regarding racial harassment (actually it is a policy

prohibiting “sexual” harassment and discrimination). While plaintiff agrees

that defendant has such a written policy, it is totally ineffective because no

one does anything to enforce it. 

Defendant admits that it requires its employees to report “harassing

conduct so that it can take the necessary steps to remedy the specific

situation and rid its work place of such behavior” (defendant’s

Memorandum of Law, page 3). 

This policy was violated by every member of the Lancaster gang who

gave a statement, including Bruce Rhodes and Bernie Reading. All of

those employees strongly supported Mr. Hogan, and denied the allegations

that were made by the plaintiff, in spite of the fact that the defendant's own

internal investigation supported Mr. Washington. It was obvious that they

were lying in order to protect Mr. Hogan. Now, the lies have become

embedded in their memories. To this very day, those who have given

statements and have been deposed claim that the plaintiff made up his

allegations and that they did not believe he was racially harassed.

Rather than prosecuting those individuals who lied to protect a coworker, defendant chose to make a scapegoat out of one worker, Mr.

Hogan. When he resigned, defendant happily announced that the matter

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 20 of 52
21

was concluded. In fact, the racial discrimination goes on since all of the

co-workers who supported Hogan are still working at Lancaster and, most

importantly, so are the supervisors Bernie Reading and Bruce Rhodes.

Defendant has attached the final, written version of the internal

report concerning Mr. Washington’s complaint of racial harassment as

Exhibit “A-5” to its Motion. The summary of the interview with Mr. Hogan

indicates that he denied all of the substantive allegations made by Mr.

Washington. Interviews are conducted with several co-workers on the

gang, all of whom support Hogan (most of the workers are only mentioned

in footnotes 2, 3 and 4). In spite of the fact that the investigators found that

Hogan, Rhodes and all of the Caucasian co-employees that they

interviewed were lying, no charges were brought against anyone else, no

follow-up investigation was conducted, no follow-up training and no followup report done to determine how this blatant racial harassment could be

prevented in the future. It is this obvious lack of an effective anti-racial

harassment policy that has lead each and every one Mr. Washington's coworkers to believe that no racial harassment occurred and that it was Mr.

Washington who was the real villain because he made up his accusations

to get money or for some other reason.

Defendant's EEO Manager, Andrew McCollum, in charge of

investigating Equal Employment Opportunity Complaints brought against

the defendant, was deposed on November 7, 2003. His deposition had

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 21 of 52
22

been scheduled weeks before, but did not go forward on the date it was

scheduled. 

Mr. McCollum testified that when an employee brings a complaint it

is investigated by the Diversity Unit and a decision is made as to whether

charges should be brought against anyone. It is only when a person files a

complaint with an outside agency such as the EEOC that Mr. McCollum’s

Unit becomes involved. Therefore, he became involved in this matter only

after plaintiff filed his complaint with the EEOC. 

Amazingly, while Mr. McCollum testified that he conducted an

investigation, visited the Lancaster Division, spoke with the Lancaster

supervisor, Bernie Reading, and Bruce Rhodes, Washington's immediate

supervisor, and other individuals who were members of the same gang as

the plaintiff, he never took any notes concerning any of those

conversations or regarding anything he did to investigate this matter.

The only written record is the letter that he sent to the EEOC in

response to the plaintiff’s complaint (attached as "EEOC letter from

McCollum"). Therefore, Mr. McCollum’s entire deposition was riddled with

pauses during which Mr. McCollum attempted to remember events without

any notes or documents other than his September 10, 2001 letter to the

EEOC. In that letter, he does not mention any independent interviews that

he conducted but, rather, only states the obvious, that is, that a complaint

was made by Mr. Washington, investigated by the company’s Dispute

Resolution’s Office which brought charges against Mr. Hogan who

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 22 of 52
23

resigned before those charges could be heard against him. Mr. McCollum

fails to inform the EEOC investigator that he conducted his own

investigation by going up to the Lancaster Office to interview Mr. Reading

and other members of the Lancaster Division gang in which plaintiff

worked.

Concerning his conversation with Mr. Reading, at first he did not

recall much of it other than the fact that Reading verified that he followed

the procedures by notifying the proper person once Washington came to

him with his complaint. Later on in the deposition, he remembered other

parts of his conversation with Reading that included Reading telling him

that he did not believe that there were any racial problems at the Lancaster

Division, and that Reading had nothing to do with whether Washington

received a particular job since it was all based on seniority.

Concerning the effectiveness of the defendant's anti-racial

discrimination policy, Mr. McCollum’s investigation did nothing to further

that policy. He admitted that it was a violation of Amtrak’s rules for a

supervisor to see or hear racial harassment and to do nothing about it, but

claimed that a worker had no obligation to report such treatment. A worker

did have an obligation to tell the truth in an investigation.

While McCollum admitted that defendant's policy required

Supervisors to report racial harassment, and that it was a violation of

defendant's polices to lie to an investigator, McCollum stated that he never

brought charges against any supervisor in any investigation for failing to

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 23 of 52
24

report a violation of the defendant's anti-racial or sexual harassment policy.

He never found that any co-worker in any investigation had lied to him. He

believes that everyone has always told him the truth. 

It is obvious that he did nothing to truly investigate Washington’s

claims since it is clear that if Mr. Washington was telling the truth, then not

only was Hogan lying, but all of the other members of his gang were lying,

including Bernie Reading and Bruce Rhodes. In spite of this obvious fact,

McCollum never even challenged any of the people with whom he spoke

about the discrepancy between Washington’s version of what occurred and

their version.

Furthermore, while he readily admitted that he was given a list of all

of those individuals who were working in Washington’s gang when these

events occurred, he made only a cursory attempt to speak with them. He

does not believe that he ever did. This issue is complicated by the fact that

he remembers none of the names of those individuals with whom he spoke,

and has no notes or records.

The Court should take judicial notice that in an investigation that is

conducted in which no names are written down of the persons who are

interviewed, no contemporaneous notes are taken of the statements of

individuals and no record of what was done in the investigation is kept,

that the investigation was not an effective one and cannot be said to have

further the defendant's alleged policy of zero toleration for racial

harassment.

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25

McCollum was asked whether he ever attempted to speak with other

minority employees at the Lancaster Division. He claims that he did

attempt to do so, but could not recall the name of the person or whether he

ever actually spoke with that person. Concerning these issues, as with

many other important issues, his answers are riddled with hesitations and

imprecise answers because he kept no record of what he did. 

He does recall that he never asked anyone whom he interviewed at

the Lancaster Division whether they had any prejudice against minorities,

or whether they thought that Washington’s complaints were valid. He

never compared anyone’s original statement taken by the Diversity Unit

shortly after Mr. Washington’s complains were made, and the statements

given to him. He never spoke with Mr. Hogan. 

He did speak with the investigator for the EEOC on several

occasions, but could remember nothing of those conversations except for

the fact that he recalls that the investigator wanted certain information and

he tried to obtain it. When counsel for the defendant asked him if he had

read the plaintiff’s EEOC complaint and whether he agreed that the EEOC

complaint fails to set forth the specific job for which Washington

complains that he did not receive because of his race, Mr. McCollum

claimed that the plaintiff's failure to identify a specific job may have

hindered his investigation. When counsel for the plaintiff asked him why

he did not simply ask for a clarification from the EEOC investigator with

whom he had several conversations, he said that he just goes by the

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26

complaint, itself, and asks no additional questions concerning it. In other

words, he has no duty to discover the truth.

It is obvious that Mr. McCollum had no desire to effectively

investigate Mr. Washington’s complaints or anyone else's complaints

regarding racial harassment.

Mr. McCollum testified that his Unit also does training, and that on an

annual basis training sessions are held with managers, foremen and any

other persons who wish to attend concerning the law regarding sexual or

racial harassment in the workplace. When asked whether the defendant

used any particular method to determine whether the training that they

gave was effective, he answered that the only way was to investigate

individual complaints. He said that he did not know any other method of

determining whether training given to people regarding sexual or racial

harassment was effective. Obviously, he has never heard of a "pro active"

system whereby investigators go out and actually talk to workers to

determine what their attitudes are and what actually happens in the

workplace. Once again, the contrast with the defendant's safety policies

highlights how seriously the defendants take safety training and how

casually they take racial and sexual harassment training.

When Mr. McCollum was asked whether he ever wrote to the EEOC

concerning a complaint of racial or sexual harassment and stated that the

defendant agreed with the claims made by the complainant, he answered

that he did that in this case. He stated that this was the only case in which

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he did that. As the defendant's EEOC manager, Mr. McCollum has testified

that he agreed with the plaintiff’s complaint filed with the EEOC and

informed the EEOC of that fact. He stated this even though it is obvious

that the defendant contested plaintiff's claim in the EEOC and continues to

contest plaintiff’s claims. The misunderstanding in brought on by the fact

that Mr. McCollum believes that going through the motions of enforcing a

racial harassment policy is the same thing as effectively enforcing that

policy. For example, he testified that in interviewing Bernie Reading

concerning this matter, his major concern was to determine whether

Reading followed the proper procedure and since Reading did so, he

believes that Reading did nothing wrong. In coming to this conclusion,

McCollum was forced to ignore the defendant's own policies and

procedures which require that managers and foremen to actively enforce

the defendant's sexual/racial harassment policy and not just sit back and

wait for somebody to make a complaint.

In summary, the facts of this case show that the defendant did

nothing to eliminate the pervasive racial harassment that takes place at the

Lancaster Division. In fact, its practices have increased the racial tension

at Lancaster because all of the Caucasian workers believe that plaintiff lied

and manipulated the system to get money or preferential treatment. If

anything, those co-workers who were prejudiced against AfricanAmericans now think that they are justified in their prejudice. 

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 27 of 52
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II. Defendant’s Alleged Undisputed Facts

A. Defendant Fails to Enforce Its Racial Harassment and 

Discrimination Policy.

Defendant claims that it is undisputed that it maintains and enforces

a strong and effective policy prohibiting racial harassment and

discrimination. This is totally untrue and is greatly disputed in this case.

The evidence is overwhelming that while the defendant did give lipservice to a policy of anti-racial discrimination and harassment, it did

nothing to enforce that policy or to train its employees concerning it.

As defendant admits, it requires its employees to report harassing

conduct so that it can take necessary steps to rid its workplace of such

behavior. There is direct evidence from Bruce Rhodes that whenever he

hears racial jokes, he turns away. He refused to 'get involved" in this

matter. He never has reprimanded any of his workers for making racial

comments; in fact, he claims that he has never heard a racial comment, as

incredible as that is. He does nothing to enforce the defendant's antidiscrimination policies. 

At the next level of supervision, Bernie Reading, has testified that he

does nothing to enforce this policy. At the level above that, James

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Herndon, has testified he is barely aware of the policy and does nothing to

enforce it.

Finally, the internal investigation conducted in this case is more than

sufficient evidence that defendant's own in-house investigation team does

nothing to enforce its policies. While it believes that several co-workers

lied in order to support Mr. Hogan’s attempts to cover up their racial

harassment, they did nothing to bring claims against those individuals.

In support of its claim that it has an “undisputed effective policy",

defendant does nothing but list a series of letters and booklets, and some

perfunctory training sessions. There are no statistics on how many

complaints are made regarding racial harassment and the outcome of

those complaints, no statistics on the effectiveness of its "diversity policy"

or how many non-whites are in managerial/foreman positions. 

The evidence set forth in the depositions taken in this case prove

that discrimination cannot be ended by merely writing policies without

effectively enforcing them. They have done nothing to bring these policies

into the workplace. They have not even hung posters reminding

employees on a daily basis of the anti-racial harassment and discrimination

policy (Reading, 47), even though such posters are required to be

displayed by law (McCollum). 

Actions speak louder than words, and defendants actions have

indicated to its employees that it does not take seriously its anti-racial

discrimination and harassment policy. Even its actions regarding Mr.

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Hogan did nothing to advance its policy. The brief investigation conducted

concerning Mr. Washington’s complaint made clear that Mr. Washington

had a valid complaint and that he was subject to racial discrimination and

harassment in the Lancaster Division. Instead of bringing actions against

all of those who cooperated and witnessed Hogan’s incredible behavior

then conspired in a cover-up, they decided to bring an action against Mr.

Hogan, only. Instead of going forward with the action, they allowed Mr.

Hogan to resign and to place into evidence a self-serving letter in which he

denies all of the allegations made against him.

B. Plaintiff's Application for the Boom Truck Position

Defendant claims that there is no dispute concerning its hiring and 

advancement procedures. Defendant claims that, essentially, all of this is

controlled by a union contract and that it has absolutely no control over

who gets what job.

Once again, the policy and the practice diverge.

In his deposition, Mr. Washington states that in September, 2000, he

advised Bernie Reading that he wanted to apply for the boom truck

operator position (Washington, 72). He testified that in September, 2000,

he noticed that there was a truck driver position on the “board”, that is,

posted as being available. It was an in-house position meaning that

everyone in Lancaster would have the ability to apply for this job before

anyone outside of Lancaster could apply for it. Washington stated that he

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went to Reading and asked him if he could have the job and Reading asked

him if he was "qualified" to operate the truck. Becoming "qualified"

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. Washington replied that he was not, but that he was obviously

capable of operating a boom truck since he had already done so, many

times, at Lancaster. Reading told him to write down the positions he

wanted and to give it to him in writing which Washington did (Washington,

72-73).

Reading stated that someone would have to come out to train him on

operating the boom truck, but Washington replied that he already knew

how to operate the vehicles and that all he needed to be was “qualified” by

having someone verify that he could operate the machines. Reading

replied that it would take a while to get someone to Lancaster to qualify

him. 

In the meantime, without informing Mr. Washington, Reading had

another individual, Al Lewis, a Caucasian, being trained for the position

and doing what was necessary for him to receive a commercial driver’s

license (CDL), something that Mr. Washington already had. After Lewis

was trained and received his CDL license, Reading qualified him and gave

him the job.

Mr. Washington’s claim is simply that they avoided the usual

procedures by informing him that they were waiting for someone to qualify

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 31 of 52
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him on a job when, in the meantime, they were actually training and

qualifying another individual for the same position, then gave that position

to this other person, Al Lewis. As Herndon confirmed, the job should have

been given to Washington since he was the most senior person with a CDL.

Given the nature of the position, Mr. Washington has testified that

Mr. Lewis now has a “untouchable” position that cannot be bumped by

anyone, realistically. See pages 72 through 74 of Washington’s deposition.

Defendant has presented no evidence to contradict this testimony

that the defendants have violated the union policies, the Thorton Decree

and its own contract by avoiding the normal and necessary procedures for

obtaining a position in order to ensure that Mr. Washington was not given a

position of importance as a boom truck operator.

Washington goes on to explain that he was lulled into a false sense

of security when Reading told him that there was no one there to qualify

anyone for the job and, so, when Al Lewis told Washington that he had

applied for the job also, Washington felt secure because Reading had told

him that there was no one there to qualify anyone for the job and it would

take a while to get someone to do that (Washington, 76-77). 

Regarding the normal procedures for obtaining such a job,

Washington explained that it was “in-house” and that you did not bid for

this job in the normal way that other jobs were bid for. First, you had to

become qualified and only then could you bid for the job. Since neither Al

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 32 of 52
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Lewis nor he was qualified, both of them would have to get qualified before

they could bid on the job (Washington, 78-79).

Washington’s sworn testimony is that he properly asked Reading for

the job, and Reading promised to qualify him as soon as someone was

available. Instead, they had Al Lewis, who did not even have a CDL license,

get his license, then qualified him for the job so that it would not be given

to Washington.

Given the testimony concerning the racial harassment endured by

Mr. Washington while at the Lancaster Division, there is clear evidence that

this maneuvering was all done to prevent Mr. Washington from obtaining

the position of boom truck operator because of his race.

Mr. Washington goes on to testify that in any Division other than the

Lancaster Division, because he had already been operating the equipment

on a temporary basis, the supervisor would have marked him down as

being qualified without having to go through any formal test (Washington,

80). In Lancaster, there exists a different set of rules, for AfricanAmericans, that is.

The only undisputed fact concerning this claim is that Al Lewis did

receive the job of boom truck operator and plaintiff did not. Mr. Reading

has denied having any conversation with plaintiff regarding this job. There

is an obvious dispute concerning the facts and, therefore, this claim should

not be subject to summary judgment. 

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III. Plaintiff’s Legal Claims

Plaintiff has asserted claims under Section 1981, Title VII and the

Pennsylvania Human Relations Act.

IV. Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure,

Defendants, to be successful, must prove that, in considering the

"pleadings, depositions, answers to interrogatories, and admissions on

file, together with affidavits, if any, . . . there is no genuine issue as to any

material fact and that they are entitled to a judgment as a matter of law."

See Fed. R. Civ. P. 56(c). An issue is "material" if the dispute may affect the

outcome of the suit under the governing law and is "genuine" if a

reasonable jury could return a verdict for the nonmoving party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must

draw all reasonable inferences in favor of the party against whom judgment

is sought. See American Flint Glass Workers, AFL-CIO v. Beaumont Glass

Company, 62 F.3d 574, 578 (3d Cir. 1995). The substantive law controlling

the case will determine those facts that are material for the purpose of

summary judgment. See Anderson, 477 U.S. at 248.

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V. The Existence of Respondeat Superior

Defendant states that its Motion for Summary Judgment is based

solely on its claim that plaintiff has failed to meet the requirement of

respondeat superior, and, therefore, plaintiff will address only this issue in

his answer.

Plaintiff has met his burden in proving that the defendant failed to

take appropriate remedial action in this matter. Additionally, there is direct

evidence that a supervisor was involved in the racial harassment since Mr.

Rhodes has testified that he was aware of the racial incidents concerning

Mr. Washington and did nothing about them. Under the defendant's own

policies and regulations, the term “harassment” must be interpreted

“broadly” (see Exhibit “A-1” attached to defendant's Motion for Summary

Judgment). On page 4 of this same document is a section entitled

“Responsibility” and it states:

Every Amtrak employee has responsibility for maintaining a

discrimination and harassment – free workplace. Amtrak

encourages employees to report violations of this policy.

Managers and supervisors should become aware of any

violation of this policy are required to report promptly to the

Dispute Resolution Office. The Vice President and Council for

Business Diversity and the General Council are responsible

for the interpretation, application at administration of this

policy.

Therefore, Rhodes was compelled to report the racial harassment of

Washington and failed to do so. While the written report concerning the inhouse investigation interview of Rhodes only speaks about the noose

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 35 of 52
36

incident, in Rhodes own statement, a copy of which is attached at the end

of his deposition, he states that he was also aware of the fact that Hogan

taped Mr. Washington to the bus. He goes on to say, in the same

statement, that he did not believe that the noose was placed near Mr.

Washington as a threat to anyone. In his deposition, he contradicts almost

each of these statements and admits that he asked the men to take down

the noose because he believed that someone (Washington) could get the

idea that the workers meant to harm him.

Concerning racial comments, when directly asked if he had ever

heard them, Rhodes gave a halting reply admitting that he was “sure

somebody may have said one that I haven’t heard or it was said and it

didn’t sink in what was said maybe”. 

When asked about racial jokes, Rhodes testified that he was “sure

they’re told, and if they are told “I try not to pay attention to them”

(Rhodes, 46). All of this is in direct violation of the stated policy of the

defendant that managers and supervisors such as Rhodes who become

aware of any violation of this policy are required to report it.

An employer is subject to vicarious liability to a victimized employee

for an actionable hostile environment created by a supervisor with

immediate or successively higher authority over the employee. See

Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); Suder v. Easton, 325

F.3d 432 (3d Cir. 2003). Furthermore, the employers also have an

affirmative duty to prevent harassment by supervisors. See Faragher, 524

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U.S. et 793, 118 S.Ct. et 2293; Weston v. Commonwealth, 251 F.3d 420 (3d

Cir. 2001).

Regarding co-workers, an employer is negligent if it knew or should

have known of racial harassment and failed to stop it or to take any

effective actions to prevent it. See Burlington Industry, Inc. v. Ellerth, 524

U.S. 742, 759 (1998).

Defendant relies upon the holding in Weston, but fails to correctly

summarize that case. In fact, the holding in Weston has no applicability to

this matter since it involved a dismissal of a complaint under Rule 12(b)(6)

and not under Rule 56. The Court held that the plaintiff failed to plead a

proper case of sexual harassment and, therefore, there was no discussion

of the actual facts of the case. 

The more instructive case is the holding in Suders v. Easton, 325

F.3d 432 (3d Cir. 2003) in which the Court examined the state of law of

employer liability in racial and sexual harassment cases where the

harassment was done by a co-worker or supervisor. The Court

summarized the current law in its first paragraph:

In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)

and Faragher v. City of Boca Raton, 524 U.S. 775 (1998),

the Supreme Court addressed the scope of the vicarious

liability of an employer for the discriminatory and

harassing conduct of its supervisors in the context of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. Â§ 2000e,

et seq. ("Title VII"). The Court also sought to clarify the

confusion among the Courts of Appeals as to the scope

and proper grounds for such liability. To that end, the

Court held that an employer shall be strictly liable to a

victimized employee for an actionable hostile work

environment created by a supervisor, when the

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discrimination or harassment at issue results in a

"tangible employment action." Ellerth, 524 U.S. at 765;

Faragher, 524 U.S. at 807. Furthermore, the Court defined

a tangible employment action in general, categorical

terms: "a significant change in employment status,"

often, but not always, resulting in economic injury.

Ellerth, 524 U.S. at 761-62; see also Faragher, 524 U.S. at

808. A tangible employment action was also defined by

reference to a non-exclusive list of possible actions:

"hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision

causing a significant change in benefits." Ellerth, 524

U.S. at 761; see also Faragher, 524 U.S. at 790. When no

tangible employment action results, the employer may

still be liable, but it may raise an affirmative defense to

liability or damages. The affirmative defense has two

components: "(a) that the employer exercised reasonable

care to prevent and correct promptly any sexually

harassing behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the employer or to

avoid harm otherwise." Ellerth, 524 U.S. at 765; Faragher,

524 U.S. at 807.

The Court reversed the District Court’s summary judgment in favor

of the defendants. After a lengthy analysis, the Court concluded that

summary judgment is not appropriate where a plaintiff proves that as a

result of sexual or racial harassment he was forced to leave his position

and, in effect, was constructively discharged. 

In the present case, in his complaint, plaintiff has alleged that he was

constructively discharged and defendant does not dispute that claim, nor

seek to move for summary judgment on it. Defendant has raised no

affirmative defenses in its Motion, and, therefore, the issue of whether an

adverse employment action was taken against Washington is not even

relevant.

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Whether the Court concludes that the racial harassment was coming

from a co-worker or a supervisor, plaintiff has presented more than

sufficient facts to allow this matter to proceed to trial. The actions taken by

the defendant cumulating in the resignation of Mr. Hogan did nothing to

alleviate the racial prejudice that exists at the Lancaster Division, and the

racial harassment that must be suffered by all African American’s who are

stationed there. Furthermore, there is direct evidence that Mr.

Washington’s supervisor, Mr. Rhodes, purposefully avoided confronting

workers who made racial comments or jokes. This evidence is so

overwhelming that it could very well form the basis of a directed verdict on

this issue.

VI. Boom Truck Operator Position

Defendant seeks to avoid liability for preventing the plaintiff from

becoming a boom truck operator based on a narrow reading of one

statement made by the plaintiff in the course of his deposition, that is, that

he did not bid on the boom truck operator job.

In fact, as stated-above, Mr. Washington made abundantly clear that

the boom truck operator job was posted “in house” in Lancaster (a fact that

the defendant has not denied even though it has presented an affidavit

from Bernie Reading, as to this issue). Mr. Washington testified that he

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40

could not bid for the job until he became “qualified” for it and set forth, in

detail, how Mr. Reading sought to obtain the position for a Caucasian

employee, Al Lewis. Therefore, it is obvious that Mr. Washington is stating

that if he had been allowed to qualify for the job as Al Lewis had, he would

of be given it since he had more seniority then Mr. Lewis for this position.

He was prevented from qualifying for the job by Mr. Reading and, therefore,

prevented from bidding on it.

Defendant's argument that the plaintiff did not bid on the job and,

therefore, could not complain about not receiving it is a cynical attempt to

avoid its liability on this issue.

Then, defendant argues that Mr. Washington’s failure to get the

boom truck operator job was without consequence because Mr. Lewis was

“bumped” out of the job on December 19, 2000 or 2003 (the affidavit

presented by Mr. Reading indicates only that Mr. Lewis was bumped before

December 19, 2003). There is no evidence to suggest that Mr. Washington

would have been bumped out of his position as Al Lewis apparently was

and, more importantly, defendant cites no law, whatsoever, for the

proposition that a defendant who has illegally prevented one of its own

employees from obtaining a job because of that employee’s race will be

granted immunity from liability if it can prove that the job in question would

not have lasted that long, anyway.

The defendant remains liable because it prevented the plaintiff from

obtaining the boom truck operator position because of his race. 

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 40 of 52
41

Essentially, in the Lancaster Division, they decided to ignore the Thorton

Consent Decree which mandated that management could not pick and

choose what workers it wished to promote. In the present case, that is

exactly what Mr. Reading did.

Contrary to the defendant’s argument that the plaintiff has produced

no evidence to prove his claim regarding the boom truck operator position,

plaintiff has presented a detailed account of his conversation with Bernie

Reading and of how Mr. Reading manipulated the system so as to ensure

that Mr. Washington did not receive the boom truck operator position.

Reading did this by “stringing along” Washington by claiming that he was

still looking for someone who could take the time to “qualify” Washington

as a boom truck operator when, in fact, behind the scenes, he was already

preparing Al Lewis for that position by having him go through the training

necessary to obtain a CDL license and, then, having Mr. Lewis qualified,

thus enabling Lewis to bid for the job while Washington remained waiting

for Mr. Reading to provide someone to “qualify him”.

Perhaps, the most important fact is that in the affidavit supplied by

Bernie Reading he does not deny Mr. Washington’s story, nor does he

deny any of the details of that story, such as the fact that you need to be

qualified before you can bid on a job or that Mr. Lewis did not even have

his CDL license when he began training for the job.

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VII. Assistant Engineer Position

Plaintiff has established a prima facie case of race discrimination 

concerning his applications for the position of Assistant Engineer. It is

undisputed that (1) plaintiff is a member of a protected class; (2) he is

qualified for the position sought (the only requirement is a high school

education); (3) he suffered an adverse employment action, that is, he did

not get the position sought; and (4) the surrounding circumstances give

rise to an inference of discrimination.

The only arguable dispute regarding the above-stated factors is

whether the surrounding circumstances give rise to an inference of

discrimination.

A plaintiff can withstand a motion for summary judgment if the

plaintiff produces direct evidence of discriminatory intent or indirect

evidence from which a fact-finder can infer that the employer's

justifications were pretextual and that racial discrimination more likely than

not motivated the employer's actions. Pollock v. AT&T, 794 F.2d 860 (3d

Cir. 1986). 

In Pollock, the Court reviewed the entire history of the matter before

determining that the plaintiff, claiming that she was fired because of racial

discrimination, presented facts that gave rise to an inference of

discrimination. The facts that are presented in Pollock are very similar to

the facts set forth in this case because, in both instances, plaintiff is

relying on the actual discrimination that has occurred and the defendant's

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43

failure to take any effective action to eliminate such discrimination, as

proof of a discriminatory intent.

Furthermore, plaintiff has pursued this claim and sought discovery

from the defendant. Defendant has failed to provide a breakdown

regarding the racial makeup of its engineer positions. Defendant has

refused to supply those reports that are mandated by the Thorton Consent

Decree which would indicate the number of minorities in various positions,

the number of minorities who applied for those positions and the number

of minorities actually interviewed for those positions. Pursuant to the

Thorton Consent Decree, defendant is required to interview a certain

minimal percentage of minorities for each position based on the number of

minority applicants in the job pool. Defendant has presented no evidence

regarding this and has refused to provide it. 

Defendant has provided information regarding certain specific

positions for which plaintiff applied. For example, attached are records

dealing with an engineer position applied for by plaintiff and actually given

to a “Barry V. Kaltenstein.” Attached are records advising Mr. Kaltenstein

that he has been given the position, and those to Mr. Washington

indicating that while he met the requirements, he was not given the

position. The letter sent to Mr. Washington is a “form” letter that does not

state what “background and experience” that the successful candidate had

and that Mr. Washington lacks. No mention is made of a lack of seniority -

the reason that defendant claims that plaintiff never received any job that

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44

he applied for. Additionally, we have attached a copy of Mr. Washington’s

application along with a copy of Mr. Kaltenstein’s application and the

interview notes with Mr. Kaltenstein. Based on a review of the application

and records, there is no distinct difference between Mr. Washington’s

background and employment history and Mr. Kaltenstein’s. In fact, Mr.

Washington states that he has an air break and mechanical background

and that he is “NORC Qualified” while Mr. Kaltenstein does not indicate any

such experience or that he has the proper NORAC qualifications.

The application, itself, is suspect in that the defendant asks for

information concerning “relatives at Amtrak”.

Mr. Washington was never even interviewed for this position, and

there is no indication that Mr. Kaltenstein has any better qualifications than

he has for this job. The record does not indicate that the defendant has

proven or presented any evidence that it had a legitimate nondiscriminatory reason for its decision not to hire Mr. Washington for this

engineer position.

Looking at the handwritten interview notes of Mr. Kaltenstein, there

are no questions asked of him concerning his attitude toward minorities

and woman, although there are several questions asked about his safety

background and the fact that he always makes sure that safety comes first.

Once again, this is clear proof that the defendant has no interest in

promoting its anti-racial and sexual harassment policies since it does

nothing to properly screen candidates who may have racial prejudices. 

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Certainly, at the very least, asking potential candidate if they would have

any problem adhering to or enforcing the defendant's anti-racial

discrimination policies would send a message to all workers that the

defendant takes those regulations seriously. There is no doubt that it has

communicated to its workers that it takes it safety regulations seriously.

Regarding other locomotive engineer or assistant engineer positions

that Washington applied for, defendant has supplied some “applicant flow

logs”. Attached is one applicant flow log for a locomotive engineer

position that apparently was done sometime in January, 2001 (Bates

Numbers D00563 and D00564). The applicant flow log indicates only those

applicants who were interviewed. There is no other data kept on the actual

applications indicating a persons race or national arrogant or gender.

Even this form, as inadequate as it is, is not filled out in that there are no

“EEO race codes” indicated for any of the applicants who were actually

interviewed for this job.

Again, plaintiff met all of the qualifications necessary for this job. He

did not receive the job, and defendant has failed to articulate any rational

reason why he did not receive it. Based on the evidence found in this case

concerning the defendant's failure to abide by its own anti-racial

discrimination policy, there is an inference that the reason that he was not

given the job was because of his race.

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VIII. Past Civil Rights Claims Against Lancaster Division

Throughout this litigation, plaintiff has requested other claims 

involving the Lancaster Division in which an individual claimed

discrimination of some type. Throughout this litigation, defendant has

claimed that there were no other discrimination claims in the Lancaster

Division.

Andrew McCollum, EEO Manger for the defendant, was specifically

asked whether he was aware of any other claims involving the Lancaster

Division. He replied that he was not aware of any other claims involving

the Lancaster Division. He stated that there were records kept based on

employment discrimination complaints by Division, and that he checked

those records, and there were none for the Lancaster Division.

The records of the United States District Court for the Eastern

District of Pennsylvania indicate that a lawsuit was started at number 01-

1178 by Seamus J. Martin who was employed as a brick mason in the

Lancaster Division on January 12, 1998. Mr. Martin complained that from

that date until March 13, 2000, Amtrak permitted its employees to engage in

a course of national origin discrimination against him. In his complaint, he

states that he complained to his general supervisor (Bernie Reading had

that job at the time) and to his foreman, but neither took any action to stop

the harassment and, therefore, he started his lawsuit.

This is direct evidence that the defendant has failed to properly

answer plaintiff’s request for information concerning previous employment

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discrimination complaints made at the Lancaster Division. Mr. Reading,

himself, claimed that there were no such accusations made in his Division.

Of course, it is possible that this is an oversight and that defendant

did not deliberately attempt to hide this information from plaintiff. In that

case, it is one more indication of how casually the defendant takes its

obligations to enforce its anti-employment discrimination policies.

IX. Conclusion

Plaintiff has presented more than sufficient evidence to meet the 

summary judgment standard by proving that a supervisor, Bruce Rhodes,

directly discriminated against the plaintiff by being aware of the

harassment by the members of the Lancaster gang against Mr. Washington

because of his race and failing to report that harassment, a direct violation

of the defendant’s own policies. Additionally, there is evidence, admitted

by the defendant, that a co-worker, Mr. Hogan, directly harassed the

plaintiff. Finally, there is abundant evidence that the defendant does not

have an effective anti-discrimination policy since it does nothing to enforce

the written policy that it has. 

The "Diversity Group" that is charged with investigations of racial

discrimination failed to pursue co-workers who lied to them and managers

who failed to enforce its policies. If it had bothered to ask, it would have

discovered that the manager in charge of the gang that was harassing the

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plaintiff may have heard racial comments and jokes but believes that he

has no obligation to do anything about it.

Regarding the boom truck operator position, Mr. Washington has

stated a clear case of discrimination in describing what took place

regarding that position. Defendants have failed to present any evidence in

contradiction to Washington’s sworn testimony.

Regarding the engineer positions, Washington has presented clear

evidence that he was qualified for the job, and that he was not given the job

because of his race, an inference that can easily be established based on

the defendant’s failure to take its anti-discrimination policy seriously.

Defendant has failed to state any justifiable reason why plaintiff did not

receive this job. Its constant “mantra” that everything is decided by

seniority is not true based on its own records which indicate that Mr.

Washington was told that he did not receive an engineering position

because there were other better qualified people. In fact, the person who

received one of these jobs instead of Washington has no better

qualification or background than Washington and, in fact, lacks the training

and certifications that Washington possessed.

Finally, while there may be a dispute as to the weight of the evidence

presented on either side of any of these issues, there can be no dispute

that all of the facts in this case are in dispute and, therefore, summary

judgment is not appropriate.

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Respectfully submitted by,

ARMANDO A. PANDOLA, JR., ESQUIRE

Attorney for Plaintiff

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PLAINTIFF’S EXHIBIT LIST

1. Washington Deposition pages 18-19, 22, 26 – 50 , 72 – 80.

2. Rhodes Deposition pages 21 – 28, 33 – 42, 55 and

Rhodes written statement.

3. Reading deposition pages 13 – 19, 22 – 26, 41 – 48, 51 – 56, 60 –

61 and Reading signed statement.

4. Herndon deposition pages 12 – 14, 17 – 19, 33, 36 – 39, 42 – 43.

5. Engineer position records.

6. EEOC Letter from McCollum

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V E R I F I C A T I O N

ARMANDO A. PANDOLA, JR., ESQUIRE, states that he is the attorney

for Plaintiff herein, and that the facts set forth in the foregoing pleading are

true and correct to the best of his knowledge, information and belief, and that

this statement is made subject to the penalties of relating to unsworn

falsification to authorities.

Date:______________________ _________________________

ARMANDO A.PANDOLA, JR.

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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

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

CERTIFICATION OF SERVICE

Armando A. Pandola, Jr., Esquire, attorney for plaintiff hereby certifies

that the attorney of record in the attached action has been served with a true

and correct copy of Plaintiff’s Answer to Defendant’s Motion for Summary

Judgment by first class mail on , 2003 to the

following:

Paul Evans, Esquire

Morgan Lewis & Bockius, LLP

1701 Market Street

Philadelphia, PA 19103-2921

________________________

ARMANDO A. PANDOLA, JR.

Case 2:02-cv-04451-CG Document 24 Filed 11/12/2003 Page 52 of 52