UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

________________________________ 

 ) 

GREG BURLEY, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Civil Action No. 11-1222 (EGS) 

 ) 

NATIONAL PASSENGER RAIL ) 

CORPORATION, ) 

 ) 

Defendant. ) 

________________________________) 

MEMORANDUM OPINION

Plaintiff Greg Burley brings this lawsuit alleging that 

defendant National Passenger Rail Corporation (“Amtrak”) 

discriminated against him on the basis of his race when it 

investigated an accident in which he was involved, determined 

that he was more culpable than a co-worker, and terminated his 

employment. Mr. Burley alleges violations of Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the 

District of Columbia Human Rights Act, D.C. Code § 2-1401.01, et 

seq. Pending before the Court is defendant’s motion for summary 

judgment. Upon consideration of the motion, the responses and 

replies thereto, the applicable law, and the entire record, the 

Court GRANTS defendant’s motion. 
2 

I. BACKGROUND 

A. Factual Background1

1. Mr. Burley’s Work as an Amtrak Engineer. 

In 2005, Greg Burley was accepted into Amtrak’s engineer 

training program and ultimately became a fully certified 

engineer. Defendant’s Statement of Material Facts (“Def.’s SMF”) 

¶ 1. Mr. Burley was assigned to work in Ivy City, where Amtrak’s 

maintenance facilities for the Washington, D.C. terminal are 

located. Id. ¶¶ 1-2. His job was to work with a conductor and an 

assistant conductor to move train cars around Ivy City. Id. ¶ 3. 

Mr. Burley’s role was governed by rules promulgated by the 

Northeast Operating Rules Advisory Committee (“NORAC Rules”). 

Id. ¶ 7. As the engineer of the group, he conducted all physical 

operation of the train engine, id. ¶¶ 4-5, and Rule 956 made him 

“responsible for the observance of all signals and for 

controlling movements accordingly.” NORAC Rules, Ex. F to Def.’s 

Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 30-8 at 9. Pursuant 

to Rule 951, meanwhile, the conductor remained “in charge . . . 

as to the general management of the train,” id., and was 

 

1

 Portions of plaintiff’s statement of material facts lack any 

citation to the record. When possible, the Court has relied on 

the record to support these allegations, but it cannot accept 

allegations that remain unsupported. See SEC v. Banner Fund 

Int’l, 211 F.3d 602, 616 (D.C. Cir. 2000) (“the district court 

is under no obligation to sift through the record and should 

instead deem as admitted the moving party’s facts that are 

uncontroverted by the nonmoving party’s [statement of material 

facts].”) (quotation marks and alterations omitted). 
3 

responsible for directing Mr. Burley’s actions. See Plaintiff’s 

Statement of Material Facts (“Pl.’s SMF”) ¶¶ 4, 70-71. 

Pursuant to Rule 16, engineers must not allow their train to 

pass a Blue Signal—a sign designed to notify engineers that 

track workers may be present. See Def.’s SMF ¶ 10; NORAC Rules, 

Ex. F. to Def.’s Mot., ECF No. 30-8 at 3-5. A Blue Signal takes 

the form of a blue flag or sign and may also display a blue 

light, but engineers must stop for a Blue Signal even if it is 

not accompanied by a blue light. Id. ¶ 11.2

 In Ivy City, Blue 

Signals are often paired with permanently installed derailers, 

devices that force an engine off of the track when they are 

applied. Id. ¶¶ 14, 16. Derailers are used in situations where 

failing to stop the engine may threaten the safety of track 

workers. Id. ¶ 15. Rule 104(d) requires engineers to know the 

locations of these permanent derailers, and bans engineers from 

operating over an applied derailer. Id. ¶ 17. 

While in Ivy City, engineers are also required to operate at 

“restricted speed,” which Rule 80 defines as a speed that 

permits “stopping within one half the range of vision short of . 

. . [d]erails set in the derailing position.” NORAC Rules, Ex. F 

to Def.’s Mot., ECF No. 30-8 at 6; see also Def.’s SMF ¶ 18. 

Relatedly, an engineer who is unsure whether the track ahead 

 

2

 Plaintiff asserts that a Blue Signal “must” include a blue 

light but provides no support for his claim. See Pl.’s SMF ¶ 11. 
4 

contains a Blue Signal or derailer must stop the engine and 

check before proceeding. Id. ¶ 19. 

Finally, under Rule 116, when an engineer is not located on 

the “leading end” of the engine’s movement, “a crew member must 

be stationed on the leading end of the movement to observe 

conditions ahead” and “[i]f signals from the crew member cannot 

be received by the Engineer, the movement must be stopped 

immediately.” NORAC Rules, Ex. 12 to Pl.’s Opp. to Mot. for 

Summ. J (“Pl.’s Opp.”), ECF No. 40-4 at 2. 

2. The Accident and the Investigation. 

On October 20, 2007, Mr. Burley was working with Conductor 

Jerry Ebersole and Assistant Conductor Lawrence Mahalak. Def.’s 

SMF ¶ 20. The crew was directed to pick up a train car that had 

been undergoing maintenance on Track 7 in the Service and 

Inspection Building. Id. ¶ 22. As their engine approached Track 

7, Mr. Ebersole instructed Mr. Mahalak to exit the engine and 

begin to prepare the train car they were picking up. Id. ¶ 23. 

Mr. Burley then received radio notification that the derailers 

on Track 7 were “down” and that he could proceed. Pl.’s SMF ¶ 

76. As the engine proceeded, Mr. Ebersole exited to the side 

opposite Mr. Burley, without alerting him. Def.’s SMF ¶ 24; 

Pl.’s SMF ¶ 81. Believing that Mr. Ebersole was on the front of 

the engine, Mr. Burley proceeded along Track 7. Pl.’s SMF ¶¶ 80-

81. He noticed that the blue lights on the exterior of the 
5 

Service and Inspection Building, which should be illuminated 

when a Blue Signal is displayed on a particular track, were not 

on and he saw neither a Blue Signal nor an applied derailer on 

the track. Id. ¶¶ 78-79. Mr. Burley’s engine nonetheless ran 

over an applied derailer and derailed. Def.’s SMF ¶ 25.

Soon after the accident, Leslie David Smith, the Assistant 

Superintendent for Terminal Services, arrived at the scene to 

investigate the accident. Id. ¶ 26.3

 Mr. Smith, who is Caucasian, 

assembled an Incident Committee, which also included Bernard 

Campbell and William Lighty, who are African-American. Id. ¶¶ 

27-28; Pl.’s SMF ¶ 28. Although there were multiple committee 

members, Mr. Smith took the lead in investigating the accident 

and writing the Committee’s Report. See Pl.’s SMF ¶¶ 27, 91. 

Mr. Smith inspected the accident site soon after the 

derailment occurred and noticed that the derailer was applied, 

and that a Blue Signal and blue light were located underneath 

the derailed engine. See Def.’s SMF ¶¶ 29-30. Mr. Smith 

concluded from this that the Blue Signal was displayed on the 

track at the time of the derailment and that the engine had 

passed through the Blue Signal and over the derailer. Id. ¶ 31. 

Mr. Burley does not dispute Mr. Smith’s characterization of what 

 

3

 When Mr. Smith arrived at the scene, Mr. Ebersole told him 

“well, he was up on the engine by himself. It’s his fault.” 

Burley Dep., Ex. 14 to Pl.’s Opp., ECF No. 37-1 at 236:19-20. 

Mr. Smith appears not to have responded. See id. at 237:4-7. 
6 

he found after the accident, but notes that Mr. Smith did not 

personally witness the display beforehand. See Pl.’s SMF ¶¶ 29-

30, 84. 

Mr. Smith also interviewed each of the crew members. Pl.’s SMF 

¶ 83. During his interview of Mr. Ebersole, Mr. Smith learned 

that Mr. Ebersole had exited the engine prior to the derailment. 

See Ebersole Interview Tr., Ex. 21 to Pl.’s Opp., ECF No. 40-6 

at 5:3-16, 7:15-22. 

To memorialize his findings, Mr. Smith composed an Incident 

Report, which catalogued Mr. Mahalak’s departure “with the 

approval of Ebersole and the knowledge of Burley.” Incident 

Report, Ex. 2 to Sherlock Decl., ECF No. 30-7 at 17. The Report 

found that Mr. Ebersole “by his estimation approximately 150 

feet north of the point of derailment, dismounted to the east 

side while the locomotive was moving at slow speed” and that Mr. 

Ebersole “did not advise Burley of the position of the derail.” 

Id. It also stated that Mr. Ebersole’s intent was “to walk ahead 

of the locomotive to the [Service and Inspection Building].” Id. 

The Report noted that Mr. Burley continued down Track 7 and 

“took no action to stop the locomotive or otherwise positively 

determine the position of the derail.” Id. at 18. 

The Report concluded that the cause of the accident was that 

“[t]he Engineer failed to stop for an applied blue-flag derail” 

and Mr. Ebersole and Mr. Mahalak “were not in position to assist 
7 

the Engineer.” Id. at 16, 18. The Report also stated that the 

incident was being treated “as decertifiable based on 

anticipated damage and the Restricted Speed and Blue Flag 

violations.” Id. at 18. 

Based on these findings, Amtrak brought formal charges against 

Mr. Burley and Mr. Ebersole. Mr. Burley was charged with 

violating NORAC Rules 16 (passing a Blue Signal), 80 (exceeding 

restricted speed), 104 (passing an applied derailer), and 956 

(general duties of an engineer). See Burley Charges, Ex. 3 to 

Sherlock Decl., ECF No. 30-7 at 22-23. Mr. Ebersole was also 

charged with violating Rules 16 and 104, as well as Rule 941, 

which holds conductors responsible for the conduct of everyone 

on the train, and an internal Amtrak rule that bars employees 

from exiting a moving engine. See Ebersole Charges, Ex. 1 to 

Pl.’s Opp., ECF No. 42-1 at 1-2. 

3. Amtrak Waives Mr. Ebersole’s Charges But Not 

Mr. Burley’s. 

Mr. Burley and Mr. Ebersole were permitted to request that 

Amtrak waive the charges against them in exchange for admitting 

to the conduct and accepting punishment. Def.’s SMF ¶¶ 39-40, 

46. Amtrak may accept or reject a waiver request at its 

discretion, Def.’s SMF ¶ 41, and it is forbidden from keeping 

any “formal transcript, statement, or recording” of waiver 

proceedings involving engineers. See Collective Bargaining 
8 

Agreement, Ex. 1 to Sherlock Decl., ECF No. 30-7 at 10.4

Ultimately, Amtrak denied Mr. Burley’s request for a waiver, 

Def.’s SMF ¶ 42, but granted Mr. Ebersole’s request and 

suspended him for fifteen days. Id. ¶ 46; Pl.’s SMF ¶ 104. 

There is only limited evidence regarding the process by which 

Mr. Burley’s request was denied. The record supports a finding 

that one or more of Daryl Pesce, General Superintendent of the 

Mid-Atlantic Division; Michael Sherlock, Acting General 

Superintendent of the Mid-Atlantic Division; and Mr. Smith may 

have been involved in the decision to deny it. See Def.’s SMF ¶¶ 

43-44 & n.8; Pl.’s SMF ¶ 43A. Amtrak officials, however, do not 

have a specific memory of the request. Def.’s SMF ¶ 44; Pl.’s 

SMF ¶ 106. While not direct evidence of why the request was 

denied, Mr. Pesce testified that he would not have granted the 

request because of the seriousness of the charges and because 

plaintiff’s denial that a Blue Signal was properly displayed 

made an investigation necessary. Def.’s SMF ¶ 45; see also 

Sherlock Decl., Ex. E to Def.’s Mot., ECF No. 30-7 ¶ 15. 

There is less information regarding Mr. Ebersole’s request. 

Neither Mr. Sherlock nor Mr. Pesce were involved in granting it. 

 

4

 Mr. Burley asserts that there may be informal records, Pl.’s 

SMF ¶ 41, but neither supports nor explains this contention and 

there is no indication that such documents exist. He also 

requests a spoliation inference on this issue “[a]s set forth in 

Plaintiff’s Opposition,” id. ¶ 41 n.2, but that brief mentions 

spoliation only in connection with an unrelated issue. See Pl.’s 

Opp. at 40. 
9 

Pl.’s SMF ¶ 46. Plaintiff claims that Mr. Smith was involved, 

id. ¶¶ 46, 107, but the evidence he cites is the deposition 

testimony of an individual who repeatedly stated that he did not 

know whether Mr. Smith was involved. See Pingley Dep., Ex. 20 to 

Pl.’s Opp., ECF No. 39-5 at 11:18-20, 18:18-21. The only 

evidence bearing on why Mr. Ebersole’s request may have been 

granted are statements by Mr. Pesce and Mr. Sherlock that Mr. 

Ebersole’s offense was less serious because he was not on the 

engine when the derailment occurred. Def.’s SMF ¶ 46. 

4. The Disciplinary Process. 

Once Mr. Burley’s waiver request was denied, Amtrak held a 

formal disciplinary hearing. See Def.’s SMF ¶ 48. Mr. Burley’s 

union representative appeared at this hearing, questioned 

Amtrak’s witnesses, and presented evidence and argument. Id. ¶ 

49. During the hearing, Mr. Smith testified that he found a Blue 

Signal and blue light on the tracks underneath the derailed 

engine and that Mr. Ebersole exited the engine prior to the 

derailment. See id. Mr. Burley testified that Amtrak lacked 

proof that a Blue Signal was properly displayed or that a blue 

light was illuminated at the time of the accident. Id. ¶ 50. The 

Hearing Officer, relying heavily on Mr. Smith’s testimony, found 

that “the evidence in this case clearly shows that the banner 

was erected (found under the locomotive) and the Blinking Blue 

Light Warning Protection/Stop Signal (found under Eng. 558 at 
10 

the derail location) was displayed as required by the rule.” Ex. 

K to Def.’s Mot. for Summ. J., ECF No. 30-13 at 4. The Hearing 

Officer concluded that “the charges have been proven.” Id. 

Mr. Pesce was then tasked with imposing discipline. Def.’s SMF 

¶ 53. He reviewed the decision of the Hearing Officer, the 

hearing transcript, and the Incident Committee’s Report. Id. ¶ 

55 & n.10. These materials led Mr. Pesce to “believe[] Burley 

was solely at fault for the derailment.” Pl.’s SMF ¶ 55A 

(quotation marks omitted). Accordingly, he determined that Mr. 

Burley should be terminated because of the seriousness of 

disregarding a Blue Signal and derailing an engine. Id. ¶ 56.5

Mr. Pesce also determined that Amtrak was required by law to 

suspend Mr. Burley’s engineer certificate for 30 days. Id. ¶¶

57-59. 

Mr. Burley filed a series of appeals of his punishment. First, 

he appealed to Amtrak’s Director of Labor Relations, L.C. 

Hriczak, who affirmed the punishment. See Def.’s SMF ¶ 60. Next, 

Mr. Burley appealed his termination to the Special Board of 

Adjustment 928, a federal arbitration body that hears disputes 

 

5

 After the fact, other Amtrak officials testified that they 

might have imposed a lesser punishment due to mitigating 

factors. See Pl.’s SMF ¶ 54 (Mr. Smith recommended “a penalty of 

only thirty days suspension”); id. ¶ 123 (Mr. Pingley and Mr. 

Lighty testified that termination may have been excessive); 

Sherlock Dep., Ex. D to Def.’s Mot., ECF No. 30-6 at 23:11-21 

(Mr. Sherlock testified that Mr. Ebersole’s exit without 

informing Mr. Burley “might be mitigating circumstances”).
11 

involving train engineers. Id. ¶ 61; see 45 U.S.C. § 153. The 

Special Board of Adjustment found “substantial evidence in the 

record of [Mr. Burley’s] violations,” noted that “termination in 

the instant matter was excessive” although the offense was 

nonetheless a serious one, and ordered that Mr. Burley be 

reinstated without back pay. See Ex. N to Def.’s Mot., ECF No. 

30-15 at 2-3. Finally, Mr. Burley appealed the suspension of his 

certification to the Department of Transportation’s Locomotive 

Engineer Review Board, Def.’s SMF ¶ 64, which found that a Blue 

Signal and blinking blue light had been discovered under the 

train after the accident, but determined that there was not 

“substantial evidence” to support a finding “that the blue 

signal was properly displayed.” Ex. O to Def.’s Mot., ECF No. 

30-17 at 5. Accordingly, it overturned the suspension of Mr. 

Burley’s certification. See id. at 6. 

B. Procedural History 

After Mr. Burley was reinstated and his engineer certification 

was restored, he filed an internal complaint with Amtrak’s 

Dispute Resolution Office, alleging that he was discriminated 

against due to his race. Def.’s SMF ¶ 66. After investigation, 

the Dispute Resolution Office found no merit to this claim. Id. 

Mr. Burley then filed a race-discrimination complaint with the 

Equal Employment Opportunity Commission, which issued a Notice 

of Right to Sue on April 17, 2011. Id. ¶ 67. 
12 

On June 30, 2011, Mr. Burley filed this lawsuit. He alleges 

that Amtrak’s decisions to deny his request for a waiver, 

terminate him, and revoke his engineer certification were 

racially discriminatory in violation of Title VII and the D.C. 

Human Rights Act. See Compl., ECF No. 1 ¶¶ 13-18. On April 8, 

2013, defendant filed a motion for summary judgment. That motion 

is ripe for determination by the Court. 

II. STANDARD OF REVIEW 

Summary judgment is appropriate when the moving party has 

shown that there are no genuine issues of material fact and that 

the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. 

Cir. 2002). A material fact is one that is capable of affecting 

the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). A genuine issue exists where the 

“evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Id. A court considering a motion for 

summary judgment must draw all “justifiable inferences” from the 

evidence in favor of the nonmovant. Id. at 255. 

To survive a motion for summary judgment, however, the 

requester “must do more than simply show that there is some 

metaphysical doubt as to the material facts”; instead, the 

nonmoving party must come forward with “‘specific facts showing 
13 

that there is a genuine issue for trial.’” Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) 

(quoting Fed. R. Civ. P. 56(e)). Moreover, “although summary 

judgment must be approached with special caution in 

discrimination cases, a plaintiff is not relieved of his 

obligation to support his allegations by affidavits or other 

competent evidence showing that there is a genuine issue for 

trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C. 2010) 

(quotation marks and alterations omitted). 

III. DISCUSSION 

Title VII makes it unlawful for an employer to “fail or refuse 

to hire or to discharge any individual, or otherwise to 

discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, 

because of such individual’s race, color, religion, sex, or 

national origin.” 42 U.S.C. § 2000e-2(a)(1). To establish 

unlawful discrimination, Mr. Burley must show that: “(1) []he is 

a member of a protected class; (2) []he suffered an adverse 

employment action; and (3) the unfavorable action gives rise to 

an inference of discrimination.” Wiley v. Glassman, 511 F.3d 

151, 155 (D.C. Cir. 2007).6

 

6

 Plaintiff’s claim under the D.C. Human Rights Act requires 

similar proof, so the Court addresses it jointly with his Title 

VII claim. See Ajisefinni v. KPMG LLP, __ F. Supp. 2d __, 2014 

WL 658405, at *7 (D.D.C. Feb. 12, 2014) (“The legal standard for 
14 

It is undisputed that Mr. Burley is an African-American, which 

is a protected class, and that he suffered an adverse employment 

action when he was terminated. The parties dispute whether the 

record supports an inference that Amtrak’s actions were 

motivated by discrimination. 

Mr. Burley presents no direct evidence of discrimination, so 

his claims are subject to the burden-shifting framework 

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973). The D.C. Circuit has indicated, however, that as soon as 

the defendant articulates a legitimate, non-discriminatory 

reason for the adverse employment action, “the district court 

need not -- and should not -- decide whether the plaintiff 

actually made out a prima facie case under McDonnell Douglas.” 

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. 

Cir. 2008) (emphasis in original). Once a legitimate, nondiscriminatory reason is proffered, the Court must determine 

whether the plaintiff has “produced sufficient evidence for a 

reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason and that the 

employer intentionally discriminated against the [plaintiff].” 

Id.

 

establishing a discrimination . . . claim under the [D.C.] Human 

Rights Act is substantially similar to the standard under Title 

VII.”) (alterations in original) (citing Carpenter v. Fed. Nat’l 

Mortg. Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999)). 
15 

Amtrak claims that it denied Mr. Burley’s request for a waiver 

and terminated his employment because its investigation found 

that he was culpable for a Blue Signal violation, and that it 

revoked Mr. Burley’s certification because it believed that it 

was required to do so by law. Mr. Burley attacks these 

explanations as pretext and argues that Amtrak: (1) was wrong 

about the facts of the accident, which he claims provides a 

reason for a jury to infer that Amtrak is covering for 

discrimination; (2) conducted an investigation so flawed that it 

supports an inference that discrimination permeated the 

investigation; and (3) has favored Caucasian employees involved 

in similar situations. 

A. No Reasonable Jury Could Infer that Amtrak is Lying About 

its Reasons for Disciplining Mr. Burley. 

Mr. Burley’s first argument in support of pretext is that a 

jury could find that Amtrak’s beliefs regarding the facts of the 

accident and the appropriate punishment were erroneous. Although 

“a factfinder’s disbelief of the reasons put forward by the 

defendant may support an inference of intentional 

discrimination,” Barnett v. PA Consulting Grp., 715 F.3d 354, 

360 (D.C. Cir. 2013) (quotation marks omitted), the question is 

not whether a jury could disagree with Amtrak’s decisions. An 

inference of discrimination may arise only if “the employer is 

making up or lying about the underlying facts that formed the 
16 

predicate for the employment decision.” Brady, 520 F.3d at 495; 

see also Fischbach v. D.C. Dep’t of Corrections, 86 F.3d 1180, 

1183 (D.C. Cir. 1996) (inference arises if the employer “made an 

error too obvious to be unintentional”). By contrast, “[i]f the 

employer’s stated belief . . . is reasonable in light of the 

evidence . . . there ordinarily is no basis for permitting a 

jury to conclude that the employer is lying . . . .” Brady, 520 

F.3d at 495. 

Amtrak claims that it sincerely believed that Mr. Burley’s 

conduct warranted denial of his request for a waiver and 

termination of his employment because the Incident Committee 

concluded that a Blue Signal was properly displayed prior to the 

accident and Mr. Burley contested this finding. See Def.’s Mot. 

at 6-8. Mr. Burley provides no direct evidence that Amtrak or 

its officials did not hold those beliefs, so a jury could infer 

discrimination only if those beliefs were unreasonable. 

Mr. Burley begins by challenging the reasonableness of 

Amtrak’s belief that a Blue Signal was properly displayed before 

the accident. He does not argue that Amtrak’s conclusion was 

baseless; rather, he asserts that “[t]here are disputes of 

material fact as to whether the blue flag derail was applied at 

the time of the derailment.” Pl.’s Opp. to Mot. for Summ. J. 

(“Pl.’s Opp.”), ECF No. 44 at 5 (quotation marks omitted). 

Indeed, Mr. Smith found a Blue Signal and a blue light 
17 

underneath the derailed engine soon after the accident. See 

Def.’s SMF ¶¶ 29-30. Although Mr. Smith did not personally see 

the Blue Signal prior to the accident, Pl.’s SMF ¶¶ 29-30, 84, 

it was reasonable to infer that the Blue Signal ended up 

underneath the derailed engine because it was displayed over the 

track prior to the accident.

The fact that Amtrak’s conclusion was not the only possible 

conclusion does not cast doubt on the sincerity of its belief. 

Disciplinary investigations must resolve disputes of fact and 

permitting a jury to infer pretext from its disagreement with an 

investigation’s findings “would mean that every employee who is 

disciplined . . . could sue for employment discrimination . . . 

and—merely by denying the underlying allegation of misconduct—

automatically obtain a jury trial.” Brady, 520 F.3d at 496 

(emphasis in original). This would turn the Court into “a superpersonnel department that reexamines an entity’s business 

decisions.” Barnett, 715 F.3d at 359.7

For similar reasons, Mr. Burley’s request for a spoliation 

inference in connection with a videotape of the accident would 

not create a genuine issue of material fact. See Pl.’s Opp. at 

 

7

 Because this dispute regarding the facts of the accident cannot 

disprove the sincerity of Amtrak’s belief in the conclusions of 

its investigation, the Court need not address defendant’s claim 

that the arbitration ruling of the Special Board of Adjustment 

precludes Mr. Burley from re-litigating factual issues related 

to the accident. See Def.’s Mot. at 9; Def.’s Reply in Supp. of 

Mot. for Summ. J. (“Def.’s Reply”), ECF No. 43 at 3-5. 
18 

40. Although “a negative inference may be justified where the 

defendant has destroyed potentially relevant evidence,” Gerlich 

v. U.S. Dep’t of Justice, 711 F.3d 161, 170 (D.C. Cir. 2013), 

the only evidence that a videotape even existed is hearsay. See 

Edler Decl., Ex. 10 to Pl.’s Opp., ECF No. 40-2 ¶ 4 (declaration 

of Mr. Burley’s union representative that he was “told that 

security camera video of the incident existed” and that “Roy 

Runkles, the AMTRAK employee charged with monitoring the 

recording equipment, told me that AMTRAK had erased the tapes”).8

In any event, granting Mr. Burley’s request for an inference 

“that the videotape supports his version of events,” Pl.’s Opp. 

at 40, would not create an inference of pretext for the same 

reason that viewing the facts of the accident in the light most 

favorable to Mr. Burley does not support such an inference; it 

 

8

 Plaintiff asserts that the statement by Roy Runkles is an 

admission by a party opponent under Federal Rule of Evidence 

801(d)(2). See Pl.’s Surreply, ECF No. 52 at 22. He relies, 

however, on cases admitting statements that spoke directly to a 

supervisor’s biased motivations and were made by declarants who 

had “some authority to speak on matters of hiring or promotion” 

or were “involved in the decision-making process in general.” 

E.g., Talavera v. Shah, 638 F.3d 303, 309-10 (D.C. Cir. 2011). 

By contrast, a statement is properly excluded in the absence of 

evidence that it was “within the scope of [the declarant’s] 

employment or that [the declarant] was given authority to speak 

on behalf of [the employer] on the subject.” Id. at 310. Mr. 

Runkles appears to have had no involvement with the underlying 

employment decisions and investigation and there is no evidence 

that he had any authority to speak on behalf of Amtrak. 
19 

does not undermine the sincerity of Amtrak’s belief in the 

results of its investigation. See supra at 16-17.9

Nor is there any evidence that Amtrak did not believe that Mr. 

Burley’s conduct warranted denial of his request for a waiver. 

While the record is sparse, it reflects that Amtrak considers 

the seriousness of an offense and whether an employee denies the 

results of the initial investigation in deciding whether to 

grant a waiver. Def.’s SMF ¶ 45; see also Sherlock Decl., Ex. E 

to Def.’s Mot., ECF No. 30-7 ¶ 15. Mr. Burley argues that his 

request for a waiver, by definition, is an acceptance of the 

investigation’s findings. Pl.’s SMF ¶ 108. Even so, Mr. Burley 

contested the finding that a Blue Signal was displayed and such 

a situation may require a formal hearing to resolve the dispute. 

See Def.’s SMF ¶ 45. In any event, Mr. Burley was charged with 

serious safety violations and has not produced evidence “for a 

reasonable jury to find that [this] . . . was not the actual 

reason” for the denial of his request. Brady, 520 F.3d at 494. 

 

9

 Mr. Burley appears to request an additional inference that the 

videotape—if it existed—was destroyed “to prevent Burley from 

having a fair hearing on his claims.” Pl.’s Opp. at 40. There is 

no evidence to support such an inference. Cf. Valentino v. U.S. 

Postal Serv., 674 F.2d 56, 73 & n.31 (D.C. Cir. 1982) (denying 

request for spoliation where “the circumstances of the 

destruction . . . provide no basis for attributing bad faith to 

[the defendant]”). Plaintiff relies on Gerlich, 711 F.3d 161, 

but that case involved clear evidence that the documents at 

issue had been “intentionally destroyed” and, in any event, the 

Court was not facing a request for a spoliation inference with 

respect to the reasons that documents were destroyed, only the 

potential contents of those documents. See id. at 170-72. 
20 

With respect to Amtrak’s termination of Mr. Burley’s 

employment, plaintiff admitted that Mr. Pesce made this decision 

“believ[ing] Burley was solely at fault for the derailment,” 

Pl.’s SMF ¶ 55A, but argues that termination was an excessive 

punishment. See id. ¶¶ 54-56, 123. In support, he cites 

deposition testimony from individuals who testified that 

termination “might” have been excessive. See Sherlock Dep., Ex. 

D to Def.’s Mot., ECF No. 30-6 at 23:11-21; Lighty Dep., Ex. D 

to Def.’s Reply, ECF No. 43-5 at 16:20-22, 18:1-9, 19:10-16; 

Pingley Dep., Ex. 20 to Pl.’s Opp., ECF No. 39-5 at 35:20-36:2. 

Mr. Smith also testified that he would not have recommended 

termination “in this scenario.” Smith Dep., Ex. F to Def.’s 

Reply, ECF No. 43-7 at 44:19-45:8. None of this evidence, 

however, demonstrates that Amtrak imposed termination for 

discriminatory reasons. Even if termination was excessive, 

“Title VII protects against discriminatory decisions, not wrong 

ones.” Hairsine v. James, 517 F. Supp. 2d 301, 308-09 (D.D.C. 

2007). Nor does the evidence show that Mr. Pesce’s decision to 

terminate Mr. Burley was “an error too obvious to be 

unintentional.” Fischbach, 86 F.3d at 1183. In any event, Mr. 

Pesce could not have acted for discriminatory reasons because he 

was unaware of Mr. Burley’s race. See infra at 21 n.11.10

 

10 Mr. Burley separately challenges Amtrak’s suspension of his 

engineer certification. He believes that Amtrak should have 
21 

B. No Reasonable Jury Could Infer Pretext from Amtrak’s 

Investigation. 

Mr. Burley’s second argument in support of pretext is that 

Amtrak’s investigation was so flawed that a jury could infer 

“that discriminatory treatment may have permeated the 

investigation itself.” Mastro v. Potomac Elec. Power Co., 447 

F.3d 843, 856 (D.C. Cir. 2006). Notably, Mr. Burley does not 

challenge the motivations of Mr. Pesce or Mr. Sherlock during 

the course of the investigation and disciplinary process.11

Instead, plaintiff claims that Mr. Smith orchestrated the 

 

considered mitigating circumstances, such as Mr. Ebersole’s 

behavior. See Pl.’s Opp. at 20. The relevant regulations mandate 

that an engineer’s certification be suspended when the engineer 

“[f]ail[s] to control a locomotive or train in accordance with a 

signal indication . . . that requires a complete stop before 

passing it.” 49 C.F.R. § 240.117(e)(1). Mr. Burley admitted that 

Amtrak found that he committed such a violation. See Pl.’s SMF ¶ 

58. Although the regulations permit consideration of whether “an 

intervening cause prevented or materially impaired” an engineer 

from complying, 49 C.F.R. § 240.307(i)(1), the formal hearing 

concluded that the charges against Mr. Burley had been proven 

despite Mr. Ebersole’s behavior. See Decision Letter, Ex. K to 

Def.’s Mot. for Summ. J., ECF No. 30-13 at 4. 

11 This is unsurprising because unrebutted evidence shows that 

neither knew that plaintiff was African-American until after the 

events of this case, Sherlock Decl., Ex. E to Def.’s Mot., ECF 

No. 30-7 ¶ 16; Def.’s SMF ¶ 59, and “[i]t is axiomatic that a 

defendant cannot be found to have discriminated against a 

plaintiff on the basis of race where the defendant had no 

knowledge of the plaintiff’s race.” Pollard v. Quest Diag., 610 

F. Supp. 2d 1, 21 (D.D.C. 2009). Plaintiff’s unsupported 

speculation that Mr. Pesce was aware of his race because Mr. 

Pesce supervised a small number of engineers, Pl.’s SMF ¶ 59, is 

not supported by any evidence that Mr. Pesce, then General 

Superintendent of Amtrak’s Mid-Atlantic Division, supervised a 

small number of employees with whom he was familiar. 
22 

investigation so that Mr. Burley would be blamed, and that he 

did so for discriminatory reasons.12 

Although Mr. Burley identifies no direct evidence that Mr. 

Smith acted for discriminatory reasons, an inference of 

discrimination could still arise if his investigation was “not 

just flawed but inexplicably unfair.” Mastro, 447 F.3d at 855. 

Mr. Burley claims that the investigation falls within this 

doctrine because Mr. Smith “ran the Incident Committee and 

manipulated the report” and intentionally hid evidence that 

would have inculpated Mr. Ebersole. See Pl.’s Opp. at 18-22. 

Plaintiff, however, supplied no evidence of manipulation and 

appeared to testify that he had no basis for believing that Mr. 

Smith was being untruthful. See Burley Dep., Ex. 18 to Pl.’s 

Opp., ECF No. 37-1 at 232:25-233:8, 337:13-338:7. Mr. Burley’s 

dispute ultimately focuses on two issues: Mr. Smith’s alleged 

failure to include certain facts in his Report and what Mr. 

Burley claims were procedural infirmities in the investigation. 

See Pl.’s Opp. at 19-22. 

 

12 The defendant argues that Mr. Smith’s motivations are 

irrelevant because he did not direct any of the adverse 

employment actions of which Mr. Burley complains. See Def.’s 

Reply at 13-16. Plaintiff believes that Mr. Smith’s 

investigation and testimony influenced the ultimate 

decisionmakers within the meaning of the Supreme Court’s 

decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). 

See Pl.’s Opp. at 14-16. The Court need not address this dispute 

because no reasonable jury could infer that Mr. Smith acted with 

discriminatory motivations. 
23 

As to Mr. Smith’s Report, Mr. Burley claims that it omitted 

mention of “when Ebersole abandoned his position and jumped off 

the train,” that Mr. Ebersole had violated Amtrak and NORAC 

Rules, and “why Ebersole was not in a position to assist 

Burley.” Id. at 19-20. The first fact was actually included in 

the Report. See Incident Report, Ex. 2 to Sherlock Decl., ECF 

No. 30-7 at 17. Although the Report did not mention the 

particular rules that were violated by any crew member, it 

contained facts that formed the basis for charging Mr. Ebersole 

with four rule violations, including one for exiting a moving 

engine. See Ebersole Charges, Ex. 1 to Pl.’s Opp., ECF No. 42-1 

at 1-2. The third fact—why Mr. Ebersole was not on the train—is 

mentioned in the Report, along with other details of Mr. 

Ebersole’s departure from the engine—he exited the engine “to 

walk ahead of the locomotive to the [Service and Inspection 

Building]” and failed to advise Mr. Burley of the position of 

the derail. See Incident Report, Ex. 2 to Sherlock Decl., ECF 

No. 30-7 at 17.

Nor was Mr. Smith’s investigation procedurally unfair like the 

investigation the D.C. Circuit addressed in Mastro. In that 

case, the investigation turned on the relative credibility of 

witnesses whose testimony contradicted that of the plaintiff. 

See Mastro, 447 F.3d at 848-49. The investigation nonetheless 

failed to consider those witnesses’ credibility—even though all 
24 

had strong motive to lie. Id. at 855-56. Further, the 

investigator’s assessment of the evidence relied on vague 

feelings rather than serious analysis, and the employer failed 

to consider the plaintiff’s lack of motive to lie. See id. By 

contrast, Mr. Smith based his findings on physical evidence of 

what was found after the accident. See Def.’s SMF ¶¶ 29-31. To 

the extent he relied on witness statements, it was to establish 

the undisputed fact that Mr. Ebersole had exited the engine and 

failed to inform Mr. Burley about the position of the derailer. 

See Incident Report, Ex. 2 to Sherlock Decl., ECF No. 30-7 at 

17-18. Moreover, Mr. Smith’s investigation was reviewed by 

formal procedures during which Mr. Burley was able to crossexamine Mr. Smith regarding his investigation and Report, and to 

present his own evidence and argument. See supra at 9-11. 

C. No Reasonable Jury Could Infer that Amtrak Favors 

Similarly Situated Caucasian Employees. 

Mr. Burley’s third argument is that his treatment deviated 

from that of similarly situated Caucasian employees. To prove 

this, Mr. Burley must “produc[e] evidence suggesting that the 

employer treated other employees of a different race . . . more 

favorably in the same factual circumstances.” Brady, 520 F.3d at 

495 (emphasis added). In this Circuit, comparators must have 

been “charged with offenses of comparable seriousness” and “‘all 

of the relevant aspects of [their] employment situation[s] [must 
25 

have been] nearly identical.’” Holbrook v. Reno, 196 F.3d 255, 

261 (D.C. Cir. 1999) (quoting Neuren v. Adduci, Mastriani, Meeks 

& Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995)). Factors relevant 

to this inquiry include “whether the alleged comparators dealt 

with the same supervisor, have been subject to the same 

standards and have engaged in the same conduct without such 

differentiating or mitigating circumstances that would 

distinguish their conduct or the employer’s treatment of them 

for it.” Kassim v. Inter-Continental Hotels Corp., __ F. Supp. 

2d __, 2013 WL 6154115, at *5 (D.D.C. Nov. 25, 2013). “If no 

reasonable juror could conclude that two employees were 

similarly situated, then a court may find they were not 

similarly situated as a matter of law.” Evans v. Holder, 618 F. 

Supp. 2d 1, 11 (D.D.C. 2009) (citing George v. Leavitt, 407 F.3d 

405, 414-15 (D.C. Cir. 2005)). 

1. Mr. Ebersole 

Plaintiff’s primary argument is that Mr. Ebersole is a proper 

comparator because the two were involved in the same accident 

and Mr. Ebersole was treated more favorably. While individuals 

in different occupations are not always proper comparators, they 

may be if they “were accused of making similar mistakes, were 

equally responsible for avoiding those mistakes, and were 

disciplined by the same superior.” Rodgers v. White, 657 F.3d 

511, 518 (7th Cir. 2011). Mr. Ebersole, however, shares none of 
26 

these traits with Mr. Burley. For one, there is no evidence that 

Mr. Ebersole was disciplined by Mr. Smith, Mr. Pesce, or Mr. 

Sherlock. See supra at 8-9. 

Moreover, although Mr. Burley believes that Mr. Ebersole was 

at least as culpable for the accident, material differences in 

their conduct and responsibilities make them improper 

comparators. As reflected in Amtrak’s charges, Mr. Burley was 

present on the engine and Mr. Ebersole was not. See Burley 

Charges, Ex. 3 to Sherlock Decl., ECF No. 30-7 at 22-23; 

Ebersole Charges, Ex. 1 to Pl.’s Opp., ECF No. 42-1 at 1-2. The 

Incident Committee, as well as Mr. Sherlock and Mr. Pesce, found 

this to be a material difference that justified holding Mr. 

Burley more culpable. Incident Report, Ex. 2 to Sherlock Decl., 

ECF No. 30-7 at 1-3; Def.’s SMF ¶ 46. It is therefore a 

“differentiating . . . circumstance[] that would distinguish 

their conduct or the employer’s treatment of them for it.” 

Kassim, 2013 WL 6154115, at *5. 

Mr. Ebersole and Mr. Burley also had distinct 

responsibilities. It was Mr. Burley’s sole responsibility to 

operate the engine, and it was Mr. Ebersole’s responsibility to 

oversee the train and the crew. See Def.’s SMF ¶¶ 4-5; Pl.’s SMF 

¶¶ 4, 70-71; NORAC Rules, Ex. F to Def.’s Mot., ECF No. 30-8 at 

9. Mr. Burley believes that Mr. Ebersole’s responsibilities as a 

conductor render him more culpable for the accident, but “it is 
27 

not the role of this Court to disagree with the defendant’s 

conclusion about the relative seriousness of 

Plaintiff’s misconduct versus [a comparator’s] alleged rules 

infractions, because Title VII does not hold employers liable 

for erroneous judgment, unless that judgment is motivated by an 

illegal discriminatory motivation.” Phillips v. Holladay Prop. 

Servs., 937 F. Supp. 32, 37 (D.D.C. 1996) (quotation marks 

omitted). 

Mr. Burley opines that he and Mr. Ebersole were equally 

culpable for the accident because Mr. Ebersole exited a moving 

train, failed to alert Mr. Burley to his departure, and was not 

stationed on the leading end of the engine’s movement. See Pl.’s 

Opp. at 29-34. This does not make them proper comparators, 

however, because it only renders their conduct more distinct. 

Amtrak provided evidence that physical presence on a train is a 

key factor in deciding an employee’s culpability for an ensuing 

accident and Mr. Burley provided no evidence to contradict this. 

See Def.’s SMF ¶ 46. Mr. Burley would permit a jury to infer 

discriminatory intent from its disagreement with Amtrak’s 

personnel determinations. Absent evidence that Amtrak’s 

culpability determination was entirely unreasonable or that it 

differed from Amtrak’s treatment of similarly situated 

employees, it is not for the Court to second-guess Amtrak’s 

determination of the relative seriousness of distinct conduct 
28 

committed by employees with distinct responsibilities. See 

Phillips, 937 F. Supp. at 37. 

2. Other Proposed Comparators. 

Plaintiff also identified six Caucasian engineers who were 

involved in safety violations but were not terminated. See Opp. 

at 35-39. He believes that the treatment of these comparators 

undermines Amtrak’s assertion that it harshly disciplines all 

engineers for serious safety violations. Id. at 38. The utility 

of these comparators, however, is severely limited because none 

share a supervisor with Mr. Burley. “[I]n order to effectively 

compare the [employer’s] actions toward [the comparator and the 

plaintiff], the supervisors taking those actions on behalf of 

the employer must have been the same.” Kassim, 2013 WL 6154115, 

at *7. “This point follows logically from the cause of action 

itself, which requires proof that the decisionmaker has acted 

for a prohibited reason”; different decisionmakers “may rely on 

different factors when deciding whether, and how severely, to 

discipline an employee.” Coleman v. Donahoe, 667 F.3d 835, 847, 

848 (7th Cir. 2012) (quotation marks and emphasis omitted). Mr. 

Burley claims that the Amtrak official who discriminated against 

him was Mr. Smith, yet none of his proposed comparators were 

disciplined by Mr. Smith.13

 

13 Mr. Pesce or Mr. Sherlock disciplined some of plaintiff’s 

comparators, but plaintiff failed to rebut evidence that neither 
29 

These comparators are also distinct because none “engaged in 

the same conduct” as Mr. Burley and many had “differentiating or 

mitigating circumstances that . . . distinguish . . . the 

employer’s treatment of them . . . .” Kassim, 2013 WL 6154115, 

at *5. Mr. Burley’s conclusory assertions that a jury could find 

that the conduct was similar do not explain how, despite these 

comparators’ different conduct, which violated different NORAC 

rules, they are “nearly identical” to him. See Holbrook, 196 

F.3d at 261.14

Some of Mr. Burley’s proposed comparators were involved in 

very distinct safety violations, such as “an incident in which 

the engine he was operating experienced an undesired emergency 

application of the brakes,” Pesce Decl., Ex. L to Def.’s Mot., 

ECF No. 30-14 ¶ 14, or a failure “to properly line a handoperated switch for a trailing point movement,” which resulted 

in damage to the switch. See id. ¶ 15. These engineers’ conduct 

did not involve a derailment or the failure to obey a signal and 

 

were aware of his race before he was disciplined. See supra at 

21 n.11. Thus, comparator evidence regarding these individuals 

cannot prove that they discriminated against Mr. Burley. 

14 Mr. Burley appears to believe that the rule violations are 

similar because they are all listed in federal regulations which 

govern when an engineer’s certification must be suspended. See 

Pl.’s Opp. at 35. These regulations, however, do not govern 

Amtrak’s decisions regarding waivers of punishment or 

termination. See 49 C.F.R. § 240.117.
30 

thus cannot readily be compared to Mr. Burley’s failure to obey 

a Blue Signal, which resulted in a derailment. 

Others caused accidents by operating their engines above 

restricted speed. See, e.g., Sherlock Decl., Ex. E to Def.’s 

Mot., ECF No. 30-7 ¶ 19; Pl.’s Opp. at 38-39. Unlike Mr. Burley, 

however, they were not also charged with a signal violation or 

with operating their engine over an applied derailer. 

The remaining comparators engaged in conduct that is closer to 

Mr. Burley’s, but Mr. Burley explained their favorable treatment 

as a product of their ties to Amtrak, not their race. One 

engineer received a waiver after running his engine over the 

same switches twice in one day, resulting in a derailment. See 

Burley Dep., Ex. 18 to Pl.’s Opp., ECF No. 37-1 at 371:7-19. His 

conduct does not appear to have involved failure to obey a 

signal and Mr. Burley testified that this engineer was treated 

favorably due to family ties to Amtrak. See id. at 372:2-5. 

Similarly, Mr. Burley identified an engineer who was given a 

waiver after two stop-signal violations. See id. at 370:9-20. 

This conduct did not involve a Blue Signal violation and Mr. 

Burley testified that this individual was treated favorably 

“[b]ecause of his strong connection. He was a [Washington 

Terminal] man too.” Id. at 370:23-371:6. 

Ultimately, no reasonable jury could rely on Mr. Burley’s 

proposed comparators to conclude that Amtrak was motivated by 
31 

discrimination. None were disciplined by the individual Mr. 

Burley claims discriminated against him. None engaged in the 

same conduct as Mr. Burley and many engaged in very distinct 

conduct. Finally, Mr. Burley noted that some of his comparators 

were treated better due to family or personal connections, not 

their race.15

IV. CONCLUSION 

For the foregoing reasons, the Court hereby GRANTS defendant’s 

motion for summary judgment. An appropriate Order accompanies 

this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 March 31, 2014 

 

15 Mr. Burley identified two comparators who were charged with a 

derailment resulting from a Blue Signal violation, but both are 

African-American engineers. See Sherlock Decl., Ex. E to Def.’s 

Mot, ECF No. ¶ 20; Burley Dep., Ex. 18 to Pl.’s Opp., ECF No. 

37-1 at 375:7-377:6, 377:7-23. If anything, these potential 

comparators undermine his argument because one was treated the 

same as Mr. Burley—terminated for a Blue Signal violation—after 

his second safety violation in one year, and the second was 

treated better than Mr. Burley—not terminated after a Blue 

Signal violation—even though she shares the characteristic he 

claims motivated his punishment. See Phillips, 937 F. Supp. 32, 

36 (the fact that similarly situated comparator who shared the 

plaintiff’s race was treated more favorably “serve[d] only to 

undermine Plaintiff’s race-based disparate treatment claim”).