Filed: Aug. 10, 2020
Latest Update: Aug. 10, 2020
Summary: NOT PRECEDETNIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-2928 _ WILLIAM ROBINSON, Appellant v. NATIONAL RAILROAD PASSENGER CORP, DBA Amtrak; BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cv-0341) District Judge: Hon. Chad F. Kenney _ Submitted Under Third Circuit LAR 34.1(a) June 15, 2020 Before: JORDAN, MATEY and ROTH, Circuit Judges. (Filed: August 10, 2020) _ OPINION *
Summary: NOT PRECEDETNIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-2928 _ WILLIAM ROBINSON, Appellant v. NATIONAL RAILROAD PASSENGER CORP, DBA Amtrak; BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cv-0341) District Judge: Hon. Chad F. Kenney _ Submitted Under Third Circuit LAR 34.1(a) June 15, 2020 Before: JORDAN, MATEY and ROTH, Circuit Judges. (Filed: August 10, 2020) _ OPINION * _..
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NOT PRECEDETNIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-2928
_____________
WILLIAM ROBINSON,
Appellant
v.
NATIONAL RAILROAD PASSENGER CORP, DBA Amtrak; BROTHERHOOD OF
MAINTENANCE OF WAY EMPLOYES
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cv-0341)
District Judge: Hon. Chad F. Kenney
_______________
Submitted Under Third Circuit LAR 34.1(a)
June 15, 2020
Before: JORDAN, MATEY and ROTH, Circuit Judges.
(Filed: August 10, 2020)
_______________
OPINION ∗
_______________
∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
On the morning of April 3, 2016, a train crashed into a worksite near Chester,
Pennsylvania, causing deaths, injuries, and property damage. The train was operated by
the Appellee here, the National Railroad Passenger Corporation (“Amtrak”). The
Appellant, William Robinson, was a track foreman for Amtrak and was fired following
the incident. He sued Amtrak, alleging racial discrimination and intentional infliction of
emotional distress. 1 The District Court granted summary judgment in favor of Amtrak.
Robinson now appeals, and we will affirm.
I. BACKGROUND
Robinson, who is African-American, was the foreman on a track maintenance
project near Chester, from the evening of April 2, 2016 to the morning of April 3, 2016.
During his shift, he obtained for the tracks under construction something called “foul
time,” a status used to prevent trains from entering a portion of track when work is being
performed on it. To obtain foul time, the foreman tells Amtrak’s dispatchers that work is
being done on a track. The foreman is supposed to use his radio to contact the dispatcher
when obtaining and releasing foul time, to ensure that other employees can hear the
communication with the dispatcher. Only the foreman who obtains the foul time is
1
Robinson also alleged that he was subject to a hostile work environment. The
District Court granted summary judgment against Robinson on that claim, and he has not
raised any issue with respect to it on appeal, so we do not address it. Skretvedt v. E.I. du
Pont de Nemours and Co., 372 F.3d 193, 202 (3d Cir. 2004) (“[A]n issue is waived
unless a party raises it in its opening brief[.]”). Further, in addition to Amtrak, Robinson
sued the Brotherhood of Maintenance of Way Employes, his union. The Court granted
summary judgment in favor of the union, and Robinson has not appealed that decision.
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permitted to release it. Once released from foul time, the tracks are understood to be free
for train traffic. The foreman is thus required to ensure that the track is clear before
releasing foul time.
During his April 2nd to 3rd night shift, Robinson used his cellphone, rather than
his radio, to obtain and release foul time. John Yager, who is white, relieved Robinson as
foreman on the morning of April 3, 2016. When Robinson then called the dispatcher
using his cellphone and released the foul time he had obtained, there was still work being
done on one of the tracks. He told the dispatcher that Yager would call to obtain foul
time for the affected tracks. Yager never contacted the dispatcher to obtain that foul
time. At approximately 7:50 a.m., Amtrak Train 89 proceeded at 100 mph down the
track where work was still underway. Two Amtrak employees were killed, and several
other employees and passengers were injured. Assistant Division Engineer Frank Kruse,
who was responsible for track maintenance, construction, and inspection in the area
where the crash occurred, immediately went to the scene of the accident. He spoke with
multiple employees involved in the accident and collected documentation.
After the accident, Robinson, Yager, and two other employees who had been at the
site requested and were afforded medical leave. Amtrak initiated disciplinary
proceedings against all four of those employees, alleging various violations of safety
rules promulgated by Amtrak and other regulatory bodies. Two of the employees
voluntarily resigned from Amtrak without returning from medical leave. Yager stayed on
medical leave until he retired from Amtrak.
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On April 13, 2017, Robinson voluntarily returned from medical leave and was
immediately suspended with pay pending a disciplinary hearing on the alleged violations
of the safety rules. Amtrak scheduled Robinson’s disciplinary hearing for April 26, 2017.
He was assigned a union representative. An Amtrak employee from the Office of
Disciplinary Investigation was appointed as the hearing officer and had authority to
decide which witnesses would be permitted at the hearing and what documents Amtrak
was required to produce. The hearing officer denied Robinson’s request for his private
attorney to be at the disciplinary hearing. She granted his request for an Amtrak
supervisor and a foreman to appear as witnesses, but both of them declined to attend.
The only witness was Assistant Division Engineer Kruse. The hearing officer later issued
a decision finding that Robinson had violated various safety rules. Amtrak then fired
Robinson.
Both the National Transportation Safety Board (“NTSB”) and the Federal Railroad
Administration (“FRA”) also investigated the train collision. The NTSB concluded that
the accident likely would not have happened had Robinson and Yager communicated
with the Amtrak dispatcher jointly. The FRA recommended that Robinson “be
disqualified from performing safety-sensitive service on a permanent basis.” (Supp. App.
at 551.)
Robinson subsequently filed this suit against Amtrak, claiming racial
discrimination in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964,
and the Pennsylvania Human Relations Act and intentional infliction of emotional
distress. The District Court granted summary judgment in favor of Amtrak. As to
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Robinson’s racial discrimination claims, the Court concluded that he had not met his
burden to show that Amtrak’s proffered reason for terminating his employment was
pretextual. The Court also held that Robinson failed to sustain an emotional distress
claim.
Robinson has timely appealed.
II. DISCUSSION2
Robinson raises two issues before us. First, he argues that there was a genuine
dispute of material fact regarding whether race was a motivating factor in his termination.
Second, he argues that Amtrak’s actions in blaming him for the April 3, 2016 collision
rise to the level of intentional infliction of emotional distress. We disagree on both
counts.
A
The District Court correctly concluded that there was no genuine dispute of
material fact regarding whether race was a motivating factor for Robinson’s termination
and that Amtrak was entitled to summary judgment. The McDonnell Douglas burden-
shifting framework applies to claims of racial discrimination. 3 Under that framework,
2
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we
have jurisdiction under 28 U.S.C. § 1291. “It is well established that we employ a
plenary standard in reviewing orders entered on motions for summary judgment, applying
the same standard as the district court.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,
265 (3d Cir. 2014).
3
The well-known burden shifting framework for discrimination cases was set
forth in the Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Robinson’s discrimination claims under 42 U.S.C. § 1981, Title VII of the
Civil Rights Act of 1964, and the Pennsylvania Human Relations Act are all analyzed
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“the plaintiff must first establish a prima facie case of discrimination by showing that: (1)
s/he is a member of a protected class; (2) s/he was qualified for the position s/he sought
to attain or retain; (3) s/he suffered an adverse employment action; and (4) the action
occurred under circumstances that could give rise to an inference of intentional
discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). If the plaintiff
meets that burden, the burden of production shifts to the defendant “to articulate a
legitimate, non-discriminatory reason for the adverse employment action.”
Id. If the
defendant meets that burden, the burden shifts back to the plaintiff “to show that the
defendant’s proffered reason is merely pretext for intentional discrimination.”
Id. “To
discredit the employer’s proffered reason, … the plaintiff cannot simply show that the
employer’s decision was wrong or mistaken[.]” Fuentes v. Perskie,
32 F.3d 759, 765 (3d
Cir. 1994). “Rather, the non-moving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action” that a reasonable jury could infer that the
employer did not act because of the legitimate, non-discriminatory reason.
Id.
Here, if we were to assume that Robinson had met his burden to establish a prima
facie case of discrimination, as the District Court assumed, he still has not met his burden
to show that Amtrak’s proffered reason for his termination – that his violation of safety
protocols contributed to a fatal train accident – was pretextual. Robinson asserts that
Amtrak’s proffered reason can be seen as pretextual because he was scapegoated for the
using the McDonnell Douglas burden-shifting framework. Jones v. Sch. Dist. of Phila.,
198 F.3d 403, 410 (3d Cir. 1999).
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accident. He claims that Yager, who is white, was treated more favorably than he was,
and that the disciplinary proceeding was unfair and manipulated by Kruse. His
protestations are unpersuasive.
First, Robinson’s assertion that he was singled out for his role in the collision does
not demonstrate that Amtrak’s reason for firing him was a pretext for racial
discrimination. It is clear from Robinson’s own admissions that he violated various
critical safety regulations, including by releasing foul time when he knew that the tracks
were not clear and by using his cellphone rather than his radio to tell the dispatcher to
release the foul time. Deaths, injuries, and significant property damage followed. Those
undisputed facts are certainly sufficient for Amtrak to conclude that Robinson’s
employment needed to be terminated, regardless of race.
Second, there is no factual support for Robinson’s claim that white employees
were treated more favorably than he was. “To show that discrimination was more likely
than not a cause for the employer’s action, … the plaintiff may show … that the
employer has treated more favorably similarly situated persons not within the protected
class.” Simpson v. Kay Jewelers. Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir.
1998). Robinson argues that Yage was treated more favorably than he was, but the
record shows otherwise. Both he and Yager were allowed to take medical leave
following the accident and both faced disciplinary charges based on it. When Robinson
returned from medical leave, any similarity between them ceased. Yager took a longer
medical leave and retired upon his return, whereas Robinson tried to return to active
service and was fired. Robinson cites no evidence that he was precluded from taking a
7
medical leave of similar length to Yager’s, and he simply did not have sufficient years of
employment at Amtrak to retire when he returned from medical leave. The undisputed
facts demonstrate that Robinson was not treated unfavorably as compared to other
employees.
Third and finally, there is no genuine dispute of material fact regarding
Robinson’s claim that a decision-maker – specifically Kruse – acted with a
discriminatory motive. Robinson argues that Kruse was protecting Yager and prevented
Robinson from having a fair and impartial disciplinary hearing. But Robinson fails to
show that there was any connection between Kruse’s actions and Robinson’s race.
Indeed, the minimal race-related evidence in the record does not involve Robinson or
Kruse, and Robinson acknowledges that Kruse never made any racially derogatory
remarks to him. Accordingly, the District Court did not err in deciding that Robinson had
not shown that Amtrak’s reason for terminating him was pretextual and in granting
summary judgment to Amtrak on Robinson’s racial discrimination claims.
B
The District Court also correctly concluded that Robinson did not make out a
claim for intentional infliction of emotional distress. Under Pennsylvania law, “[a]n
action for intentional infliction of emotional distress requires four elements: (1) the
conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless;
(3) it must cause emotional distress; and (4) the distress must be severe.” Bruffett v.
Warner Commc’ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982) (internal quotation marks and
citation omitted). A plaintiff must demonstrate that the defendant’s conduct was “so
8
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.”
Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988) (internal quotation marks
and citation omitted).
Robinson claims that Amtrak tortiously caused him emotional distress by
scapegoating him for the April 3, 2016 collision and by manipulating the disciplinary
proceedings against him. “[I]t is extremely rare to find conduct in the employment
context that will rise to the level of outrageousness necessary to provide a basis for
recovery for the tort of intentional infliction of emotional distress.” Id. Here, Amtrak’s
conduct was not outrageous and obviously did not rise to the level of outrageousness
necessary to make out a claim for intentional infliction of emotional distress. Robinson
admitted to having a role – a very significant one – in a fatal accident. There is nothing
outrageous in an employer’s taking action to address derelictions of duty with such dire
consequences.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s order granting
summary judgment in favor of Amtrak.
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