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United States District Court, E.D. Pennsylvania

February 11, 2004.

DEREK E. ELLIS, Plaintiff

The opinion of the court was delivered by: RONALD BUCKWALTER, District Judge


Presently before the Court is Defendant National Railroad Passenger Corporation's ("Amtrak") Motion for Summary Judgment, Defendant Brotherhood of Railroad Signalmen, Local 18's ("Union") Motion for Summary Judgment, Plaintiff Derek E. Ellis' ("Plaintiff) Oppositions thereto and Amtrak's Reply to Plaintiff's Opposition. For the reasons set forth below, Amtrak's motion is granted in part and denied in part, and Union's motion is granted.*fn1


  The following is a recitation of the undisputed facts. On or around July 11, 1994 Amtrak hired Plaintiff — an African American — as a Helper. During subsequent times in his Page 2 employment with Amtrak, Plaintiff held the positions of Signalman Trainee and Signalman. Except for the first sixty days of his employment, Plaintiff was at all times a member of a collective bargaining unit that was covered by a collective bargaining agreement ("CBA") between Amtrak and the Union.

  On or around January 15, 2001, Amtrak eliminated approximately twenty Signalman positions when it abolished several work gangs located in the Pennsylvania Coach Yard. Plaintiff was one of the Signalmen who lost his position. Pursuant to the CBA, Signalmen who lost their positions were permitted to bid for vacant positions within their seniority district, bump less senior employees by exercising their displacement rights or transfer to another seniority district. Any employee who failed to obtain a vacant position, bump a less senior employee or transfer to a different district was furloughed. Faced with these options, Plaintiff bumped into other positions, but each time he bumped into a position, he was ultimately bumped out of the position by a more senior employee. Eventually, Plaintiff ran out of bumps, and with no vacant positions available, Plaintiff decided to accept furlough instead of transferring into another seniority district. Plaintiff was furloughed on or around January 22, 2001.

  While he remained on furlough, two Caucasian employees with less seniority — George Dorman and Michael Moore — obtained positions within Plaintiff's seniority district. Both Dorman and Moore had had their jobs abolished, along with Plaintiff's job, in January, 2001. Dorman received a position in or around April, 2001, and Moore received a position in or around September, 2001. In or around January, 2002, Amtrak recalled Plaintiff from furlough.

  On or around October 24, 2002, Plaintiff filed the instant action alleging that Amtrak intentionally discriminated against Plaintiff by awarding positions to less senior white Page 3 employees before awarding him a position, and that Amtrak's actions violated the CBA. Specifically, Plaintiff has alleged the following three causes of action: 1) violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; 2) violation of Civil Rights Act, 42 U.S.C. § 1981; and 3) Violation of the Pennsylvania Human Relations Act, 43 Pa.C.S.A. § 951 et seq.


  A motion for summary judgment will be granted where all of the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. U.S. v. Diebold. Inc., 369 U.S. 654, 655 (1962).

  The ultimate question in determining whether a motion for summary judgment should be granted is "whether reasonable minds may differ as to the verdict." Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.


  A. The Position Awarded to George Dorman

  In or around October, 2000, Dorman — a white Signalman with less seniority than Plaintiff — went out of work on a medical leave of absence. As explained above, in January, 2001 Page 4 Amtrak abolished approximately twenty Signalman positions, including Dorman's position. Dorman was still on medical leave at the time Amtrak abolished his position.

  On or around January 26, 2001, James Ficarra — a senior Signalman who had retained a position after Amtrak abolished twenty Signalman positions — suffered an injury on the job and was unable to work. Ficarra was out of work for several weeks when it was determined that he would need surgery. In or around late March, 2001 or early April, 2001, Amtrak officially labeled Ficarra's position as "permanently vacant."

  In March 2001 — prior to the time that Amtrak labeled Ficarra's position as permanently vacant — Dorman contacted Amtrak and notified Amtrak that he was ready to return from his medical leave. After passing a physical and a drug test, Dorman returned to work on or around April 8, 2001. Dorman filled Ficarra's position, which ultimately was not advertised as vacant until April 17, 2001 — approximately nine days after Dorman had already filled the position.

  Plaintiff has alleged that Amtrak engaged in racial discrimination by awarding Ficarra's position to Dorman — a less senior white employee — instead of properly advertising the position. Because Plaintiff was the most senior furloughed employee, he claims that he should have received the position. Plaintiff also alleges that Amtrak deliberately left Ficarra's position vacant — and did not advertise the position for approximately two and one half months — in order for the vacancy to coincide with Dorman's return from medical leave in April, 2001. (Def.'s Br. at 9-10, 20, 32.) Page 5

  1. Railway Labor Act Preemption

  Amtrak argues that Plaintiff's claims are preempted by the Railway Labor Act, 45 U.S.C. § 151 et seq. ("RLA"). Amtrak states that the CBA governed all of its actions in awarding Ficarra's position to Dorman, and that Plaintiff's claim is premised on an interpretation of the CBA, and thus, inextricably intertwined with the CBA.*fn2 Accordingly, Amtrak argues that Plaintiff should have filed a grievance and "sought a determination by the National Railway Adjustment Board ("NRAB"), the entity that has exclusive authority to interpret collective bargaining agreements under the RLA." (Pi's Br. at 2.)

  The purpose of the RLA is to promote stability in relations between labor and management. Hawaiian Airlines. Inc. v. Norris, 512 U.S. 246, 252 (1994). "To realize this goal, the RLA establishes a mandatory arbitral mechanism for the prompt and orderly settlement of . . . disputes." Id. Disputes that are subject to mandatory arbitration are disputes that are grounded in the CBA and involve the interpretation or application of the CBA. See id, at 254-56. The RLA, however, "does not preempt causes of action to enforce rights that are independent of the CBA." Id. at 256.

  In Stokes v. Norfolk Southern Railway Co., a district court addressed an issue that is similar to the issue in the instant case. 99 F. Supp.2d 966 (N.D. Ind. 2000). In Stokes, the plaintiff claimed that he was discriminated against because of his race when his employer laid him off and then refused his repeated requests to bump into foreman positions. Id. at 968. The Page 6 plaintiff claimed that his employer did not layoff employees in accordance with seniority, and that less senior white employees retained positions. Id. at 969. The plaintiff further claimed that once he was laid off, the employer did not advertise a position that should have been advertised, and therefore, the plaintiff did not get a chance to bid on the position. Id. The position was ultimately filled by a white employee. Id. Plaintiff brought claims pursuant to Title VII and 42 U.S.C. § 1981. The defendant moved to dismiss the complaint arguing that the RLA preempted the Plaintiff's claims. Id.

  In denying the defendant's motion to dismiss, the court stated,

[Plaintiff's] claims are not grounded in a dispute over the meaning of the seniority provisions of the CBA . . . but instead pertain to [defendant's] motives in laying off [plaintiff] and in denying his request to bump. Although [Plaintiff's] claims involve seniority rights that are determined by the CBA, that doesn't mean his claims involve application or interpretation of the CBA. Id. at 971.
[T]he court will not address an interpretation or application of seniority rights under the CBA, but instead will decide factually, [defendant's] motives in denying [plaintiff] his seniority and bumping rights. Whether [defendant] laid off [plaintiff] or denied [plaintiff] his bumping rights because of his race in violation of his right to be free from race discrimination under the Title VII and § 1981 are purely factual questions whose resolution only requires inquiry into [defendant's] motives.
  Id. at 971-72. See also Hawaiian Airlines, 512 U.S. at 261 (stating that purely factual questions about an employee's conduct or an employer's conduct and motives do not require a court to interpret any term of the collective bargaining agreement)(citing Lingle v. Norge Div. of Magic Chef. Inc., 486 U.S. 399 (1988)); Smith v. Northwest Airlines. Inc., 141 F. Supp.2d 936 (W.D. Tenn. 2001)(finding that Plaintiff's Title VII claim is not preempted by the RLA where there is a factual inquiry into employer's motives even if the CBA will be consulted); Mosqueda v. Burlington Northern Santa Fe Railway, Page 7 981 F. Supp. 1403 (D. Kan. 1997)(fmding that RLA does not preempt Title VII claim when a resolution requires more than an interpretation of a CBA).

  For the reasons stated in the above-cited cases, the Court finds that the RLA does not preempt Plaintiff's claim with regard to the position that Amtrak awarded to Dorman. Amtrak urges that it followed the CBA, and that this dispute can be resolved only by interpreting and applying the CBA. Specifically, with regard to advertising Ficarra's position and labeling it "permanently vacant," Amtrak argues that Rule 12 governed its actions. Rule 12 states, in pertinent part, "(b) Temporary positions and temporary vacancies, when it is known they will be of more than 30 days' duration, unless a longer period is agreed upon, shall be advertised as though they were permanent positions or vacancies . . ." (Def.'s Br., Ex. Bl.)

  The parties do not dispute that Ficarra became injured and left work on January 26, 2001. Furthermore, it is undisputed that he remained out of work for months until Amtrak finally advertised his position as a permanent vacancy on April 17, 2001. Despite the wording of Rule 12(b) — when it is known that a temporary vacancy will be longer than thirty days it "shall be" advertised as a permanent position — Amtrak argues that this rule provided it with discretion on when to advertise Ficarra's position. While the Court has serious questions regarding how Rule 12(b) conveys discretionary powers to Amtrak, the Court still finds that contract interpretation is not necessary. Amtrak and its management have repeatedly stated — and their undisputed actions show — that Amtrak had and used discretion on when to advertise the Ficarra Page 8 position as permanently vacant. (Def.'s Br. at 9-11; Palmer Dep. Tr. at 31; Def.'s Reply Br. at 8; Robinson Dep. Tr. at 45.)*fn3

  This "discretion" is what saves Plaintiff's claims from RLA preemption. This particular issue does not require an interpretation or application of the CBA. Rather, this issue presents a factual dispute regarding Amtrak's conduct and motives for waiting until April 17, 2001 to advertise the Ficarra position. Whether or not the CBA actually conferred discretion to Amtrak is irrelevant in determining the critical issue in this case — whether Amtrak exercised discriminatory conduct or had discriminatory motives in waiting until April 17, 2001 to advertise the Ficarra position.

  Plaintiff alleges, inter alia, that Amtrak deliberately waited until mid-April to advertise the position so that Dorman's return from medical leave would coincide with Ficarra's position becoming permanently vacant. Amtrak on the other hand states, inter alia, that it waited until mid-April because it was not sure of the extent of Ficarra's injuries or the length of time he would be off of work. Regardless of the CBA's interpretation or application, the parties have a factual dispute over Amtrak's motives for not advertising Ficarra's position until mid-April, and the RLA does not preempt such disputes. Page 9

  2. Prima Facie Case of Discrimination

  Amtrak next argues that even if the RLA does not preempt Plaintiff's claims, Plaintiff cannot meet his burden to prove a prima facie case of discrimination under Title VII or § 1981. (Def.'s Br. at 31.) In order to succeed on a discrimination claim, the Plaintiff must first establish by a preponderance of evidence a prima facie case of discrimination. Ezold v. Wolf. Block. Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1993). A plaintiff can establish a prima facie case by showing that he is a member of a protected class; that he was qualified for and rejected for a position; and that non-members of the class were treated more favorably. Id. After the plaintiff establishes a prima facie case, the burden then shifts to the defendant to produce evidence of a legitimate nondiscriminatory reason for its decision. Id. If defendant successfully meets this burden, then the burden shifts back to the plaintiff to prove that defendant's proffered reasons are pretext for discrimination. Id.

  a. Adverse Employment Action

  Amtrak argues that Plaintiff has failed to meet its burden of establishing a prima facie case because Plaintiff cannot prove that he suffered an adverse employment action. (Def.'s Reply Br. at 11-12.) The Court, however, does not agree. There is no dispute that Plaintiff is an African American and was qualified for the position that Dorman received. Plaintiff has alleged, and Amtrak has not attempted to refute, that he was the most senior Signalman to be furloughed when Amtrak abolished jobs in January, 2001. (Comp. at ¶ 12.) Accordingly, Plaintiff would have been the first furloughed employee to be eligible to return to work. The adverse employment action that Plaintiff alleges to have suffered was when Amtrak deliberately held Ficarra's position vacant — instead of properly advertising it — so that Amtrak could award the Page 10 position to Dorman. Plaintiff alleges that had the position been advertised earlier, Dorman would not have been back from medical leave to take the position, and Plaintiff — being the most senior furloughed employee — would have received the position.

  Amtrak, however, argues that pursuant to Rule 12 of the CBA, furloughed employees are only eligible to bid on positions if there are no bids from active employees. (Def.'s Br. at 15-17; Def.'s Reply Br. at 11-12.) Accordingly, Amtrak states that Plaintiff "cannot prove that, absent the award of the position[] to Mr. Dorman . . . he would have been awarded the position[] under the terms of the CBA." (Def.'s Reply Br. at 11.)

  The Court does not find Amtrak's argument persuasive. First, Amtrak's arguments appear to be contradicted by its own exhibits. Exhibits H1 and H2 attached to Amtrak's brief purport to show the advertisement of Ficarra's position and the notice of award of the position. Included in Exhibit H2 is a document entitled "Bidder Summary All Bidders." The document lists "all bidders" for two different positions that Amtrak advertised, including the Ficarra position. The document shows that, regarding the Ficarra position, there was only one bidder — George Dorman. If the position had not gone to Dorman, and as Exhibit H2 shows there were no other bids from active employees, then the position would have gone to the most senior furloughed employee — Plaintiff.

  The Court also has another issue with Amtrak's argument. Assuming arguendo that Amtrak did engage in racial discrimination, Amtrak cannot now rely on that discrimination to discredit Plaintiff's prima facie case. Amtrak is arguing that even if Plaintiff is correct in alleging that Amtrak discriminated by awarding the position to Dorman, Plaintiff cannot now go back and recreate events in 2001 to prove that no other active employees would have bid on the Page 11 position, and consequently, Plaintiff would have obtained the position. If, however, Amtrak did discriminate, then what Amtrak's argument ignores is that it is its own discrimination that might hinder Plaintiff in making such a showing. Again, assuming arguendo, had Amtrak not discriminated by awarding the position to Dorman, Plaintiff would not be in the position of having to recreate a scenario that would have played itself out but for the discrimination. Accordingly, the Court cannot accept Amtrak's argument, because at a minimum, it creates a genuine issue of fact as to whether Plaintiff could have received the position.

  Regardless of that particular argument, the Court still would not grant summary judgment to Amtrak based on this issue. There is enough evidence that Plaintiff could possibly prove that he suffered an adverse employment action, but more importantly, there is a genuine issue of fact that exists for trial. Amtrak did not meet its burden of showing that, with regard to this issue, there are no issues of fact for a jury to decide,

b. Similarly Situated Employees
  Amtrak next argues that Plaintiff cannot meet his burden of showing a prima facie case because Plaintiff and Dorman were not similarly situated employees. (Def.'s Br. at 32-33.) Specifically, Amtrak argues that at the time the Ficarra position became available, Dorman was returning from medical leave, and that pursuant to the CBA, employees returning from medical leave have more rights than furloughed employees.

  The Court only partly agrees with Amtrak's argument. To the extent Plaintiff challenges Amtrak's interpretation of the CBA, the Court agrees with Amtrak's argument — the Page 12 CBA does appear to give certain rights to employees who are returning from medical leave. The Court notes, however, that interpreting the CBA is unnecessary for this particular issue*fn4

  With regard to whether Dorman and Plaintiff were similarly situated, the critical inquiry is not determining the extent of Dorman's rights at the moment he returned from medical leave, but rather, whether Dorman and Plaintiff were similarly situated when Amtrak allegedly delayed advertising the Ficarra position so that it could award the position to Dorman instead of Plaintiff. There is no dispute that both Dorman and Plaintiff were Signalmen, and that Amtrak abolished both Dorman's and Plaintiff's positions in January, 2001. There is also no dispute that Plaintiff was trying to return to work from furlough, that Dorman was trying to return to work from medical leave, and that both employees needed a vacant position to become available so that they could return to work.*fn5 Pursuant to Plaintiff's allegations, Amtrak deliberately denied Plaintiff a position and awarded the position to a similarly situated white employee — a Signalman whose job was abolished, who was trying to return to work and who needed a vacant position to become available. Accordingly, the Court finds that there is enough evidence in the record that a genuine issue of fact exists for a jury to decide.

  c. Amtrak's Legitimate Non-Discriminatory Reason

  Amtrak next argues that even if Plaintiff meets his burden of establishing a prima facie case, that Amtrak had a legitimate, non-discriminatory reason for awarding the position to Dorman. (Def.'s Br. at 33-34.) Specifically, Amtrak states that Rule 12(b) of the CBA granted Page 13 Amtrak discretion on when to advertise the Ficarra position. Additionally, Amtrak argues that pursuant to Rules 16, 13 and 12 an employee who returns from medical leave — such as Dorman — has rights that are superior to employees who are on furlough.*fn6

  d. Plaintiff Alleges that Amtrak's Reason is Pretext for Discrimination

  When a defendant answers the Plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

  Plaintiff alleges that Amtrak management condoned racial discrimination, and in one case, made racial comments directly regarding Plaintiff. In support of this allegation, Plaintiff offers two pieces of evidence to show that Amtrak's legitimate reasons are pretext for discrimination. Plaintiff claims that Joseph Derillo, an Amtrak supervisor for over twenty years became upset when Amtrak awarded the Ficarra position to Dorman instead of Plaintiff. (Pl's Br. at 4-8.) Derillo testified at his deposition that he talked with Amtrak management regarding why Dorman received the position. (Id.) Derillo stated that he spoke with, among other people, Bob Mays, Assistant Chief Engineer. (Id. at 6.) Derillo testified that when he entered Mays' office, he found that Mays was in possession of a black-faced voodoo doll that was hanging by its neck — a symbol that Derillo believed was a connotation of race. (Id.) The two of them had a Page 14 verbal confrontation regarding doll and Amtrak's treatment of Plaintiff, and then Derillo left Mays' office. (Id.) According to Derillo, Mays and his boss Keith Holt, oversaw the entire Communications and Signals Division of Amtrak, which is where Plaintiff worked. (Id.)

  The second alleged racial incident occurred when Derillo spoke with Jack Whalen, Assistant Division Engineer. Derillo testified that he told Whalen that it was not right that Amtrak awarded the position to Dorman instead of Plaintiff. (Id. at 7-8.) Derillo stated that Whalen responded by saying "what do you care, [Plaintiff] is black." Derillo then had a verbal confrontation with Whalen and left his office. (Id. at 8.)

  According to Plaintiff, Whalen was one of the key decision makers in deciding to award the Ficarra position to Dorman. (Id. at 6.) Plaintiff has submitted evidence that supports this allegation. During his deposition, Derillo was questioned as to why the Ficarra position remained vacant for such a long period of time. (Id. Ex. I at 12-13.) Derillo responded that he did not know the answer because that would have been Whalen's responsibility. (Id.) Additionally, Plaintiff submitted two "Personnel Action Request" forms. (Id. at Ex. P-4 & P-6.) The first form indicates that Ficarra needed a medical leave of absence, and it was authorized by Whalen on March 9, 2001. (Id. at Ex. P-4.) The second form indicates that Dorman was returning from his medical leave of absence, and it was authorized by Whalen on April 9, 2001. (Id. at Ex. P-6.) This evidence suggests that Whalen was, at least to some extent, involved with handling the personnel actions regarding Ficarra and Dorman.

  Amtrak counters by arguing that Plaintiff cannot show pretext because Amtrak properly followed the CBA and because the alleged racial incidents did not involve decision makers. (Def.'s Br. at 34-26; Def.'s Reply Br. at 9-10.) The Court, however, does not agree. As Page 15 previously discussed, this case will not involve, and does not require, an in-depth interpretation of the CBA. The primary issue in this case is whether Amtrak had discriminatory motives and actions in delaying the advertisement of the Ficarra position and ultimately awarding it to Dorman. Furthermore, regarding Amtrak's "decision maker" argument, Amtrak again misses the point. Amtrak states that the key decision maker was Richard Palmer, Director of Labor Relations, because Palmer interpreted the CBA to mean that Dorman had certain bidding and seniority rights at the time he returned from medical leave. (Def.'s Reply Br. at 5 & 9-10.) Again, interpretation of the CBA is not the critical issue in this case. The key decision makers in this case were the people who decided to deliberately leave the Ficarra position vacant, and if Plaintiff's allegations are accurate, the people who devised a way to award Dorman the position at Plaintiff's expense. Amtrak has not offered any evidence regarding who these people were.

  Accordingly, the Court finds that Plaintiff has come forward with enough evidence to survive summary judgment regarding this issue. There is enough evidence in the record that creates genuine issues of fact regarding Amtrak's motives and whether Amtrak's legitimate, non-discriminatory reasons are pretext for discrimination.

  B. The Position Awarded to Michael Moore

  Plaintiff also alleges that Amtrak discriminated against him in September, 2001 when Amtrak awarded a position to Michael Moore — a white employee with less seniority than Plaintiff. Moore was a Signalman in the Philadelphia seniority district in January, 2001 when his position, along with Plaintiff's position, was abolished. Moore, however, decided to transfer to the New York district in order to remain employed and in order to remain "active" under the Page 16 CBA.*fn7 While in the New York district, Moore exercised his rights as an "active" employee and bid on and received a position in Lancaster in September, 2001.*fn8 Soon after he got to Lancaster, the position was abolished, and Moore exercised his rights as an "active" employee to obtain a position in Philadelphia.

  Plaintiff alleges discrimination because Amtrak awarded a position in Philadelphia to Moore instead of Plaintiff. Plaintiff's only support for this allegation is that Plaintiff was more senior than Moore, and that there appears to be no record of an advertised vacancy for that time period.*fn9 (PL's Br. at 20-21.) The Court notes, however, that at least a portion of Plaintiff's argument is based on his own misunderstanding of the seniority districts>. Plaintiff alleges that Amtrak just simply awarded a position to Moore in the Philadelphia district, "after Moore had been furloughed in Lancaster District, while Plaintiff was kept out on furlough." (PL's Br. at 20-21; See also PL's Br. at 22.) The undisputed evidence, however, shows that Moore's job in Lancaster was actually part of the Philadelphia seniority district. (Def.'s Reply Br. at 11; Def.'s Brief Ex. H3-H4.) Accordingly, when Amtrak abolished Moore's position in Lancaster, Moore was permitted to exercise his rights within his home seniority district — Philadelphia.

  Furthermore, in attempting to support his allegations, Plaintiff repeatedly misstates Moore's deposition testimony. Plaintiff states, "Amtrak assigned Mr. Moore to a job Page 17 as a Signalman, after Moore had been furloughed in Lancaster District . . ." (Pl.'s Br. at 20-21.) Plaintiff also states, "Moore testified that he did not bid for this position, and there was no known vacant position that he was assigned to." (PL's Br. at 21) Plaintiff further states that Moore was "recalled" for the Philadelphia position and that there "was no bidding on the job."*fn10 (Pl.'s Br. at 29.) These characterizations of Moore's testimony are blatantly false. Moore testified as follows:

Q. Now, how did you get your job in the Philadelphia office in September 2001?
A. I don't recall actually.
Q. Did you receive any letter recalling you from Lancaster?
A. No. I never received any letter. (Moore Dep. Tr. at 7.)
* * *
Q. Did you bid for any position in Philadelphia office in September 2001 that you took?
A. That I cannot recall. (Id. at 8.)
* * *
Q. Your job in Lancaster in September 2001 was bolished, correct?
A. Yes.
Q. And then you were able to get a position in the Philadelphia office immediately after that?
A. That's correct. (Id. at 9.)
  Q. And the position that you would have gotten when you came in September 2001 to Philadelphia you did not bid for an open position, did you? Page 18

  A. That I cannot recall. (Id. at 10.)

  As this testimony shows, 1) Moore's job in Lancaster was abolished, but he never claimed to be furloughed, and Plaintiff has not submitted any evidence that Moore was furloughed; 2) Moore never claimed that Amtrak recalled him. In fact, he specifically said he never received any recall letter; 3) Moore never claimed that he did not bid on a position — he stated that he could not recall whether or not he bid; and 4) Moore never claimed that there was not a vacant position at the time he received a position in Philadelphia.

  Amtrak argues that it should be awarded summary judgment on this claim because 1) the claim is preempted by the RLA; 2) Plaintiff cannot prove a prima facie case of discrimination; 3) if Plaintiff does prove a prima facie case, Plaintiff cannot show that Amtrak's legitimate, non-discriminatory reasons were pretext for discrimination. The Court agrees with all three arguments.

  1. Railway Labor Act Preemption

  In his Opposition Brief, Plaintiff has not offered any evidence whatsoever as to why his claim regarding the Moore position should not be preempted by the RLA. Additionally, as stated above, at least a portion of Plaintiff's arguments are blatantly false. The undisputed evidence in this case shows that Moore was at all relevant times an "active" employee because he chose to transfer to New York instead of accepting furlough. Plaintiff, on the hand, was not "active" because he accepted furlough instead of transferring to New York. When Moore eventually received a position back in Philadelphia in September, 2001, Plaintiff alleges discrimination because Moore is white and less senior. Page 19

  Amtrak, on the other hand, argues that the CBA provided for every action taken by Moore and Amtrak, and that to prove its argument would require CBA interpretation and application. The Court agrees with Amtrak. Moore took a series of actions that were purportedly permitted by the CBA and which ultimately landed him back in Philadelphia. To determine if Amtrak properly permitted Moore to make these moves would require an in-depth interpretation and application of the CBA. Furthermore, Plaintiff has not offered any legitimate allegations, let alone evidence, that would show that there are purely factual questions regarding Amtrak's conduct or motives that would save this claim from RLA preemption. Accordingly, the Court finds that the RLA preempts this claim.

  2. Prima Facie Case. Legitimate Non-Discriminatory Reason & Pretext

  Even if somehow the RLA did not preempt this claim, the Court would grant summary judgment on this claim because Plaintiff cannot meet its burden of proving discrimination. First, Plaintiff cannot meet his burden of showing a prima facie case of discrimination because the evidence is clear that Plaintiff and Moore were not similarly situated. Moore chose to transfer to New York in order to remain "active" under the CBA. Plaintiff, on the other hand, chose to be furloughed instead of transferring, and this decision meant that Plaintiff lost his active status. The CBA clearly grants superior rights to active employees over inactive employees — even if the active employee is less senior.*fn11 Accordingly, Moore and Plaintiff were not similarly situated. Page 20

  Secondly, even if Plaintiff could show a prima facie case, Amtrak has offered a legitimate, non-discriminatory reason for its actions — following the rules of the CBA. Plaintiff, on the other hand, has not offered any evidence whatsoever to show that the Amtrak's reason is pretext. For this reason, and the reasons stated above, the Court grants Amtrak's motion for summary judgment as it relates to Plaintiff's allegations regarding the position Amtrak awarded to Moore.


  For the foregoing reasons, the Court grants Amtrak's motion for summary judgment with regard to Plaintiff's claim of discrimination relating to the position that Amtrak awarded to Michael Moore. The Court denies Amtrak's motion for summary judgment with regard to Plaintiff's claim of discrimination relating to the position that Amtrak awarded to George Dorman. The Court grants Union's motion for summary judgment.

  An appropriate Order follows.

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