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GORDON v. AMTRAK

May 11, 1983

REYNOLD GORDON
v.
NATIONAL RAILROAD PASSENGER CORPORATION a/k/a AMTRAK



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Based on the evidence presented at trial, the Court makes the following findings of fact: Plaintiff began working for the Penn Central Railroad in 1975. He started in the Wilmington repair shops of the railroad on August 23, 1975 as a laborer. In December, 1975, he became a pipefitter. In 1976, the Penn Central subsequently became, pursuant to the National Railroad Reorganization Act, a part of the Amtrak system.

 At the Wilmington shops, Gordon and other workers performed repairs and general maintenance on Amtrak rail cars. Rail cars would be routinely rolled into the shops on tracks which led from the main rail lines into the shops. Once inside the shops, work would be performed on the cars. After repairs and maintenance were completed, the cars are returned to use on the main lines of the Amtrak system. As part of the repair process, the rail cars are routinely coupled together and uncoupled during movement to and from the shops.

 On May 20, 1981, at approximately 8:00 a.m., Mr. Gordon and others were repairing Amtrak car No. 57 in the Wilmington shops. Mr. Gordon was on top of the car, performing his work when another car was to be moved into position to couple with the car on which Mr. Gordon was standing. Mr. Gordon was ordered to come down from the car so that he would not be hurt by impact between the cars. Robert Kanicki, the foreman of Mr. Gordon's work crew, twice ordered plaintiff to come down. Max Mathes, the foreman of another work crew repairing the same rail car, also ordered Mr. Gordon down. Amtrak rules require that a workman such as Mr. Gordon obey the orders of both his own crew foreman and those of any other crew foreman. Ordinarily, when rail cars are being moved in the shop, a warning light and buzzer are activated. These warning devices were not working on the morning of May 20, 1981, however. There was some background noise in the repair shop, but it was not so loud that workers could not hear instructions from their foremen.

 When the two rail cars coupled, Mr. Gordon was knocked down by the impact. He dismounted car No. 57, but did not report any injuries. He did not make any sort of accident report to Mr. Kanicki, his foreman, as required by the Amtrak rules. The following day, Mr. Gordon awoke with back pain. He arranged for a friend to transport him to his personal physician and instructed his daughter to call the Amtrak Wilmington shops and report that he would not be coming to work. Plaintiff's daughter, Donna Gordon, phoned Amtrak at approximately 10:00 a.m. Amtrak rules required that an injured worker personally report his injuries as early in the morning as possible so that substitute labor could be arranged or so that the crew's work for the day could be revised to adjust to the missing worker's absence.

 Plaintiff's doctor diagnosed plaintiff's injury as a sprained lower lumbar vertebrae. He prescribed a back brace, rest, and some therapy for Mr. Gordon. An Amtrak doctor substantially agreed with this diagnosis. Plaintiff was pronounced fit to return to pipefitting work in January, 1983, approximately 18 months after the accident. Mr. Gordon received disability payments from Amtrak until June, 1982. He did not return to work after the injury and did not file an accident report, as required by the Amtrak rules.

 Prior to the May 20 incident, Mr. Gordon had engaged in several acts which his supervisors considered insubordinate. On August 3, 1978, plaintiff was reprimanded by letter for refusing a superintendent's order to return to work when plaintiff was observed beginning work late because he chose to converse with another employee after being told to begin his work shift. In May, 1979, plaintiff was charged with insubordination for refusing a supervisor's order to perform a work task. After investigation, he was found to have been insubordinate, and was suspended from work for 30 days. He appealed the investigation's finding and suspension; he received an appeal hearing in June, 1979. The investigation findings and suspension were upheld but the suspension was reduced to 25 days. In May, 1980, Mr. Gordon received another letter of reprimand for being reported away from his assignment for 1 hour and 30 minutes. On May 13, 1981, one week before the May 20 incident which resulted in plaintiff's termination, he was reprimanded for calling Mr. Kanicki, his crew foreman, an "incompetent jackass" and telling Mr. Kanicki to "f himself" in response to a directive from the foreman.

 Prior to the 1981 incident which gave rise to his dismissal, Mr. Gordon had complained to Amtrak officials about the corporation's procedures for selecting foremen. Specifically, plaintiff had contended that Amtrak's requirement that applicants for foreman positions submit "bids" for the job openings was overly bureaucratic. Mr. Gordon expressed a desire to become a foreman but told Amtrak that he wished to apply by merely informing them of his interest in the open position. Amtrak officials who met repeatedly with plaintiff regarding this problem, informed the plaintiff that all available foreman positions were posted on a public bulletin board at the Wilmington shop. When such postings were made, Mr. Gordon was informed that he could formally apply for the open position merely by completing "bid" forms available from Amtrak and submitting them to either his supervisor or the shop's general manager. A "bid" in Amtrak jargon simply means a properly completed and filed application form. Plaintiff was repeatedly told that in order to be considered for a foreman's position, or any other job promotion at the Wilmington shops, he must submit a bid for the available position. Despite these clear instructions, Mr. Gordon did not submit a bid for a foreman's position at any time during the 6 years that he worked at Amtrak's Wilmington shops.

 Apparently, during the course of 1978 meetings with Amtrak officials, Mr. Gordon stated that he considered the bid requirement racially discriminatory. He at that time noted to the shop supervisors that very few of the shops' foremen were black. Thereafter, the record contains no evidence that Gordon ever accused the shop management of Amtrak of racially discriminatory hiring practices. His complaints to Amtrak appear to be based upon Gordon's allegations that Amtrak's procedures were bureaucratic and it appears that his primary purpose was to obtain promotion to a foreman's position.

 Plaintiff has filed this Title VII claim alleging that he was fired in retaliation for his earlier actions in support of his statutory right to non-discrimiinatory employment treatment. The testimony presented at trial showed that the plaintiff was advocating his own advancement to foreman in his dealings with Amtrak officials. However, Mr. Gordon, who is black, contended that Amtrak's bid procedures for job openings had resulted in few blacks becoming Amtrak foremen. The Court, therefore, determined that Mr. Gordon had stated a prima facie case of retaliation based upon his criticisms of the system, which he initiated in 1978. However, on the basis of the evidence presented at trial, the Court finds that, although Mr. Gordon was a competent pipefitter who desired to become a foreman, he consistently refused to follow Amtrak's job application procedures and frequently disobeyed the orders of his supervisors. The Court finds by a preponderance of the evidence that he was dismissed from his job because of his acts of insubordination and not because of any discrimination or retaliation prohibited by Title VII.

 In order to prevail in a suit brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e -- (3), the plaintiff in this case had to first establish a prima facie case of discrimination or retaliation. If the plaintiff sets forth such a prima facie case, the defendant must "articulate some ...


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