[00:00:01] Speaker 02:
Case number 14-7051, Greg Burley, appellate versus National Passenger Rail Corp, doing business as Amtrak.

[00:00:08] Speaker 02:
Mr. Carl for the appellate, Mr. Sakalakis for the appellate, please.

[00:00:49] Speaker 04:
Mr. Burley and Mr. Eversole were subject to the same work rules as cases about the selective application of those rules.

[00:01:01] Speaker 04:
If Burleigh had received a waiver in formal disposition of the charges against him, he wouldn't have been fired.

[00:01:08] Speaker 04:
We wouldn't be here.

[00:01:10] Speaker 04:
Now, there are two separate narratives in the record of why the locomotive derailed.

[00:01:17] Speaker 04:
Amtrak says that the African-American engineer, Mr. Burleigh, was solely responsible.

[00:01:23] Speaker 04:
This is what Pesh said he believed.

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And based on the documents prepared by Smith and reflecting Smith's testimony,

[00:01:31] Speaker 04:
in the fact that he concealed mitigating factors in his report, it certainly would appear that way.

[00:01:37] Speaker 04:
But what is not on the record is Ebersol's breach of his duty, the fact that he jumped off a moving locomotive, that it was Ebersol's job as the conductor to run the movement of the locomotive.

[00:01:50] Speaker 04:
Burleigh is driving the locomotive, he believes Ebersol is on the front of the locomotive, and

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When you compare the discipline imposed on the two employees, Eversol was more experienced.

[00:02:05] Speaker 04:
He knew better.

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He was in charge of the movement of the engine.

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There were no lights, no blue lights displayed on the track, and Burleigh couldn't see the derail itself because of the curve.

[00:02:15] Speaker 04:
And, of course, he didn't know that Ebersole had jumped ship.

[00:02:20] Speaker 04:
Now, Ebersole testified as part of the investigation that was conducted by Amtrak that, in fact, the light, the blue light was not working when you consider the fact that

[00:02:32] Speaker 04:
Ebersole acted intentionally and Burleigh did not.

[00:02:37] Speaker 04:
The evidence does not support the disparate discipline that was imposed, particularly since Burleigh had been cleared by radio to get out on the tracks.

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And he can stop his locomotive if and only if he knows that Burleigh is gone.

[00:02:53] Speaker 04:
So Burleigh is following, sorry, that Ebersole is gone.

[00:02:55] Speaker 04:
Burleigh is following directions.

[00:02:58] Speaker 04:
Ever saw is off the locomotive ever stall starts yelling at him telling him that the derail was deployed But this morning obligation or his training to know where every blue signal and every derailer is in

[00:03:12] Speaker 02:
in this area and have anybody who's on a moving, I mean I thought the rule was anybody who's on a moving train is responsible for it.

[00:03:23] Speaker 04:
He knew where the derail was, he believed that Ebersol was in the front of the locomotive directing his move.

[00:03:30] Speaker 04:
Blue light was not displayed and so there was no reason for Burleigh to think or believe that the derail

[00:03:38] Speaker 04:
was still deployed, it would be real.

[00:03:42] Speaker 02:
This is not in the record, but I found it really bizarre.

[00:03:45] Speaker 02:
And when I think about this case, I don't understand why every new car these days has a video camera showing things that you can't see with your own eyes.

[00:03:53] Speaker 02:
They really have to rely on a live human being having to be on the front of the train in order to see

[00:04:00] Speaker 02:
where there are the signals or derails.

[00:04:03] Speaker 04:
Yes, your honor.

[00:04:04] Speaker 04:
And ever so is it supposed to be on the train or supposed to be on the ground and he was shouting at him, but he couldn't be hurt.

[00:04:11] Speaker 02:
I just find it mind boggling.

[00:04:12] Speaker 02:
I know that's not the issue in this case, but I'm just trying to understand.

[00:04:15] Speaker 02:
The circumstances, it seems to my body like they're such a primitive system.

[00:04:20] Speaker 04:
And part of it is that's the reason why they had two conductors out there.

[00:04:23] Speaker 04:
They had a conductor and assistant conductor because if you look at the map of the railroad yard, you see the curve of the track.

[00:04:29] Speaker 04:
So Burleigh is not able to see.

[00:04:32] Speaker 02:
So the issue here, I mean, you're describing a situation that maybe may seem a little random to us.

[00:04:37] Speaker 02:
It may not seem the best way to run a railroad, but you're

[00:04:40] Speaker 02:
your burden is to show that there was a tribal issue of discrimination.

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And I guess the question is where is there evidence that the reason for this, what might be

[00:04:57] Speaker 02:
odd decision to treat Ebersole differently is in any way attributable to race.

[00:05:04] Speaker 04:
Well, first of all, no one admits or acknowledges being involved in giving Ebersole a waiver, but it appears that decision and a jury could find that decision was made by Mr. Smith.

[00:05:17] Speaker 03:
What's the evidence in the record that a jury would rely on that Smith was involved in Ebersole's?

[00:05:23] Speaker 03:
What's the evidence in the record that supports the notion that it was Smith who was involved in Ebersol's waiver?

[00:05:31] Speaker 04:
Because the people above him, Sherlock and Pesce, have no recollection.

[00:05:35] Speaker 04:
And the test, the record shows that the decision like that is ordinarily made at the assistant superintendent or superintendent level.

[00:05:44] Speaker 03:
Or someone above.

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That's what he testified to.

[00:05:47] Speaker 04:
Or what?

[00:05:47] Speaker 04:
The big pardon?

[00:05:48] Speaker 03:
This guy, yeah.

[00:05:55] Speaker 03:
Engley, is that his name?

[00:05:57] Speaker 03:
Is that the guy who touched Engley?

[00:05:59] Speaker 03:
Do I have the wrong?

[00:06:00] Speaker 03:
Yes, Your Honor.

[00:06:00] Speaker 03:
What's his name?

[00:06:02] Speaker 04:
His name is Engley.

[00:06:03] Speaker 03:
Engley, yeah, right.

[00:06:04] Speaker 03:
He says, he says, you're true, nobody knows what happened in this case, but he says that such decision would normally be made by the assistant superintendent, quote, or someone above.

[00:06:19] Speaker 03:
Right?

[00:06:20] Speaker 03:
That's what he testified to.

[00:06:22] Speaker 04:
Now, Smith was the superintendent, but it could have been someone above Smith who did the... It could have been except another question to Sherlock to say that they had any involvement in the decision to give a waiver to Ebersol.

[00:06:39] Speaker 04:
And if the decision for to give Ebersol was a waiver was made at Smith's level,

[00:06:45] Speaker 04:
that it certainly appears likely, given what Smith knew, that he was involved in the decision to deny a waiver to Burley.

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And when I talk in terms of what Smith knew, Smith knew that Ebersol stated

[00:07:02] Speaker 04:
that the blue and white was not deployed.

[00:07:05] Speaker 04:
Now Smith goes to the scene of the derailment and says that the blue and white was flashing and that the blue and white was properly displayed.

[00:07:18] Speaker 04:
This is the particular finding, the testimony that the Locomotive Engineer Review Board says is not supported by substantial evidence and the

[00:07:31] Speaker 04:
And what the law of the circuit is that when a decision is not supported by substantial evidence, there's almost nothing there.

[00:07:39] Speaker 04:
The courts rarely make that finding.

[00:07:42] Speaker 04:
And what Mr. Smith did is he said that the light was deployed even though he was not at the scene of the accident, even though he knew that Ebersol, in this case,

[00:07:54] Speaker 04:
had said that the blue light was out.

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And thirdly, just in terms of the circumstantial evidence, if the locomotive had hit the blue light and was properly destroyed, the locomotive would have destroyed that blue light.

[00:08:10] Speaker 04:
And if you look at what Smith knew about what Ebersole actually did, you look at the charging papers, the notice of the four charges against Ebersole, it's clear that Smith knew that Ebersole dismounted from the locomotive or jumped off the locomotive.

[00:08:32] Speaker 04:
And that's the reason why he was not in a position to assist the engineer.

[00:08:40] Speaker 04:
And so there are really two separate versions of what happened here.

[00:08:45] Speaker 04:
There's the version that Smith described in which he admitted critical information.

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including the reason why Eversol was not in a position to help Mr. Burleigh.

[00:09:01] Speaker 04:
But secondly, he omitted other mitigating factors, other exculpatory information.

[00:09:08] Speaker 04:
So if you look at that first report, Your Honor, it looks like the derailment was solely Burleigh's fault.

[00:09:15] Speaker 04:
But there is other evidence, including the fact that Ebersole said the light wasn't working, including the fact that Ebersole abandoned the ship and left Burleigh in charge, including the fact that Ebersole didn't tell Burleigh that he was going to jump off or dismount from the locomotive, that a reasonable jury could find that, well, no, it wasn't solely

[00:09:37] Speaker 04:
Burleigh's fault that Ebersol was at least as responsible for the derailment as Mr. Burleigh was and that was information that including the mitigating factors that Smith concealed from the people who ultimately reviewed.

[00:09:54] Speaker 04:
the decision in the report.

[00:09:58] Speaker 04:
And when you look at the transcript, for example, of the investigative hearing, well, the Amtrak employees conducting the hearing refuses to consider, refuses to hear,

[00:10:10] Speaker 04:
any claim of disparate discipline.

[00:10:13] Speaker 04:
He refuses to consider any of the circumstances suggested, and we think it certainly strongly suggested that Ebersol was responsible for the derailment.

[00:10:24] Speaker 04:
He refused to allow those matters to be the subject of testimony at the hearing.

[00:10:30] Speaker 04:
And so we have a hearing where Mr. Smith has got a report.

[00:10:34] Speaker 04:
And what he's essentially doing is reading large

[00:10:37] Speaker 04:
portions of the report into the record, including the funny, I thought kind of quaint terminology, ever saw the conductor was not in a position to help Burleigh.

[00:10:50] Speaker 04:
Well, that just begs the question of why he wasn't in a position to help Burleigh.

[00:10:54] Speaker 04:
And the answer to that, and the evidence shows, he wasn't in a position to help Burleigh because he secretly abandoned ship without telling him.

[00:11:03] Speaker 02:
Is there any rule that requires that conductor to stay on the train?

[00:11:07] Speaker 04:
No, the rule is that you either have to be on the front of the locomotive, or you've got to be walking ahead of the locomotive.

[00:11:14] Speaker 02:
And wasn't he walking ahead?

[00:11:16] Speaker 04:
He was walking ahead, but he was walking ahead on Burleigh's blindside.

[00:11:19] Speaker 04:
And his job under the Amtrak and the NORAC rules is that he's got to be in a position where he can work.

[00:11:26] Speaker 02:
But he wasn't disciplined for that, and Amtrak didn't consider him to be out of place in that respect.

[00:11:31] Speaker 04:
Well, he was out of place.

[00:11:32] Speaker 04:
This is what he was charged with.

[00:11:34] Speaker 02:
being off the train.

[00:11:36] Speaker 04:
But more importantly, not being in a position to help.

[00:11:38] Speaker 04:
But this was one of the charges that was assumed within the waiver, the guilty plea, if you like, to which Mr. Ebersol signed off.

[00:11:49] Speaker 02:
Was there evidence other than Burleigh's interest in a waiver that he did accept responsibility?

[00:11:55] Speaker 04:
He went to his union representative.

[00:11:57] Speaker 04:
His union representative met with Bingley.

[00:11:59] Speaker 04:
His union representative met with Sherlock in order to get the waiver.

[00:12:03] Speaker 04:
And the answer was, we're not going to talk to you about it.

[00:12:07] Speaker 02:
But I guess my question was, was there evidence that he accepted responsibility?

[00:12:11] Speaker 02:
I mean, he wanted the benefit of a waiver, but did he sort of

[00:12:16] Speaker 02:
in any way say, I messed up, Buck stopped with me, I'm responsible.

[00:12:21] Speaker 02:
Because I think part of the defense argument here is that Ebersole really came forward and accepted responsibility in a way that Burleigh didn't.

[00:12:31] Speaker 04:
Well, there are two responses.

[00:12:33] Speaker 04:
Number one is this is part of the standard waiver process.

[00:12:36] Speaker 04:
I accept responsibility.

[00:12:38] Speaker 04:
I am guilty of these charges.

[00:12:40] Speaker 04:
So it is a guilty plea.

[00:12:42] Speaker 04:
But the other part is that the district court summary judgment analysis is based on testimony from Pesce and from Sherlock about what they would have done.

[00:12:53] Speaker 04:
But Amtrak does not have any evidence whatsoever as to who is the decision maker.

[00:12:58] Speaker 04:
And since neither Pesce nor Sherlock remember being involved in the decision, their testimony five years later about what they would have done in 2007 certainly has no probative value.

[00:13:12] Speaker 04:
But even more, perhaps even more importantly than that for the purpose of assessing what was really going on here is they didn't know

[00:13:20] Speaker 04:
that Ebersole had gotten the waiver.

[00:13:23] Speaker 04:
They didn't know that Ebersole had jumped off the train.

[00:13:26] Speaker 04:
They didn't know that Ebersole had told Smith in a recorded interview taken approximately an hour after the derailment.

[00:13:35] Speaker 04:
They didn't know that Ebersole said,

[00:13:38] Speaker 04:
that the light, the blue light was out.

[00:13:40] Speaker 02:
Can you tell me, you had mentioned that Mr. Ebersole was disciplined for being off the train.

[00:13:45] Speaker 02:
Can you just remind me where in the record, or point to me where in the record that is, that he was actually disciplined for that?

[00:13:50] Speaker 04:
Your Honor, it is the plaintiff's exhibit, I think number one or number two, and it's right in the first or second exhibit following the

[00:14:05] Speaker 04:
Complain of Statement of Material Facts.

[00:14:08] Speaker 04:
And so that precise page is going to be, it's called Amtrak's Charging-Littered Ebersol.

[00:14:15] Speaker 04:
And it's at page 322, Ebersol's waiver is at 323, and there's attached to that a corrected version of the Amtrak Charging-Littered Ebersol.

[00:14:28] Speaker 04:
The charging letter, Antwerp's charging letter to Ebersole has two pages and that's why the corrected version was filed.

[00:14:37] Speaker 04:
And the second page lists the specific charge against Ebersole that demonstrates that those involved knew specifically what

[00:14:53] Speaker 04:
important because of the specification about the charge against ever getting off the train.

[00:15:02] Speaker 04:
Further, this action contributed to the derailment in that you were not in the cab of the locomotive to notify your engineer.

[00:15:10] Speaker 02:
All right, so you're on 327, is that right?

[00:15:13] Speaker 04:
327, is that right?

[00:15:15] Speaker 04:
327, yes.

[00:15:16] Speaker 02:
Okay, thanks.

[00:15:17] Speaker 04:
And in terms of what actually happened as opposed to what Mr. Smith has said, there's a jury question there.

[00:15:30] Speaker 04:
What do we have here as a situation like?

[00:15:32] Speaker 04:
I think perhaps like part of Kroneman or Solomon case where the judge is making findings of facts.

[00:15:38] Speaker 04:
He says, I find it's reasonable to find Smith credible.

[00:15:41] Speaker 04:
Well, we submit that's a jury issue, that there was substantial evidence to support Smith's testimony that the blue light was properly displayed.

[00:15:50] Speaker 04:
Smith wasn't there and it's inconsistent with whatever Saul told him.

[00:15:53] Speaker 04:
And thirdly, that it really was deserved to be denied a waiver.

[00:15:57] Speaker 02:
Mr. Kroll, can you just really quickly address the spoliation issue?

[00:16:01] Speaker 02:
And just succinctly, what is the basis for believing that it wasn't just they have some tapes and they flush them as a routine matter, but that somebody actually had a duty to preserve it and didn't?

[00:16:19] Speaker 04:
Well, Your Honor, part of this is

[00:16:22] Speaker 04:
an element of the timeline and they take the tapes and they record the motion detector and they record what happens in the yard and they record what happens in order to properly investigate an accident.

[00:16:37] Speaker 04:
The derailment was on October 20th.

[00:16:39] Speaker 04:
Adler the union rep asked for the video on October 26th.

[00:16:43] Speaker 04:
And then Ms.

[00:16:44] Speaker 04:
Never, I'm sorry, Adler asked for the video on October 29th, the Monday or 10, nine days after the accident.

[00:16:54] Speaker 04:
And there was no dispute below as to whether or not the tapes actually existed.

[00:16:59] Speaker 04:
There's testimony in the, for example, in the Calvin on a deposition, the appendix pages 421 through 426 about the reason why they have these particular

[00:17:13] Speaker 04:
tapes of why they were taping it.

[00:17:16] Speaker 04:
And the whole premise of having this taping system is in order to investigate if there's an accident.

[00:17:24] Speaker 04:
And so our argument with respect to the spoliation is really twofold.

[00:17:29] Speaker 04:
Number one, if, and this goes back to the business judgment rule, if Smith was really serious about finding out whether or not

[00:17:41] Speaker 04:
the blue light was properly displayed.

[00:17:46] Speaker 04:
he would have looked at the tapes.

[00:17:48] Speaker 04:
And secondly, the fact that he didn't look at the tapes, and Runkle said the tapes were destroyed, certainly would support the difference by a jury, that in fact they knew about the tapes, they knew they were... Is there any testimony from Runkle, or any declaration from Runkle?

[00:18:04] Speaker 04:
He was... Well, the discussions between Adler and Runkle, and Adler includes this in his declaration.

[00:18:11] Speaker 02:
Right, but there's nothing from Runkle, because it seems like if you really want to press this exfoliation issue,

[00:18:17] Speaker 02:
saying to destroy it.

[00:18:19] Speaker 02:
It's a little hearsay, right?

[00:18:22] Speaker 04:
Your Honor, we submit specifically excluded from the hearsay rule under 801D2.

[00:18:29] Speaker 04:
And for example, the decision that Judge Kavanaugh was on a case called English versus DC lays out

[00:18:38] Speaker 04:
specific requirements as to what is hearsay and what's not.

[00:18:43] Speaker 04:
And it seems that it's perhaps under Talavera and under English that it's certainly not hearsay and that we satisfy the requirements by showing that the locals could make the statement

[00:18:58] Speaker 04:
within the scope of his employment that was related to his duties.

[00:19:02] Speaker 04:
Rookle was the guy in charge of the room where they kept the video equipment.

[00:19:07] Speaker 04:
And he doesn't have to show, the plaintiff does not have to show that

[00:19:13] Speaker 04:
Rokos was involved in any way in the employment decision, where Amcrat comes in and says, well, you know, we've got this business judgment rule, and we did this thorough investigation.

[00:19:26] Speaker 04:
It's one of more than a half a dozen pieces of evidence showing that that's not true, that there was no serious investigation, that Smith concealed material information.

[00:19:37] Speaker 04:
If you really wanted to know whether the light was on, instead of going to the scene of the derailment and looking at the scene of the derailment when he wasn't there at the time, it certainly does not fulfill the duty of creating or doing a thorough investigation.

[00:19:59] Speaker 04:
If you wanted to know the answer, it's notable.

[00:20:01] Speaker 04:
And the same is true of the video.

[00:20:04] Speaker 03:
You're well over your time.

[00:20:06] Speaker 03:
Thanks.

[00:20:07] Speaker 03:
Thank you.

[00:20:07] Speaker 01:
Good morning, Your Honors, and may it please the Court, Ange Sacklairs, here on behalf of Amtrak.

[00:20:22] Speaker 01:
I want to take you back.

[00:20:23] Speaker 01:
In October of 2007, Mr. Burley was alone on an engine.

[00:20:27] Speaker 01:
He alone pushed that engine forward over an applied derail and derailed his train.

[00:20:33] Speaker 01:
And Amtrak conducted a full and thorough investigation.

[00:20:36] Speaker 01:
And my colleague on the other side is pointing to Smith and attempting to create the impression that Mr. Smith was the sole investigation of this derailment.

[00:20:44] Speaker 01:
But that is absolutely not true.

[00:20:46] Speaker 01:
According to Mr. Burleigh's collective bargaining agreement, Amtrak had to offer him a full evidentiary hearing, something that amounted to essentially a bench trial before a neutral hearing officer who was not a member of Amtrak's transportation department.

[00:21:01] Speaker 01:
And at that hearing, Mr. Burleigh was represented by his union.

[00:21:04] Speaker 01:
He was able to testify in his own behalf.

[00:21:08] Speaker 01:
He was able to present whatever evidence he liked.

[00:21:10] Speaker 01:
He was able to cross-examine Amtrak's witnesses.

[00:21:12] Speaker 01:
And the hearing officer, examining all of the evidence, found that Mr. Burleigh was responsible for the derailment and crossed the blue signal, and by doing so, violated one of the most egregious

[00:21:25] Speaker 01:
rules that an engineer can violate.

[00:21:27] Speaker 02:
But Mr. Seckler, didn't the hearing officer rely substantially on Smith's report at the time?

[00:21:33] Speaker 02:
Wasn't that the main really significant piece of evidence in that hearing?

[00:21:37] Speaker 01:
Your Honor, we will not deny that Mr. Smith was a significant witness in the hearing, but there were many witnesses, including Mr. Burleigh himself.

[00:21:44] Speaker 02:
His report doesn't even talk about Everett Sol's involvement in Smith's report.

[00:21:50] Speaker 02:
There are some gaps that your opposing counsel has pointed to that Smith is giving a report and it's not complete.

[00:22:00] Speaker 02:
He's not doing the diligence that one would expect to do if one really wanted to get to the bottom of things.

[00:22:04] Speaker 02:
He didn't look at the tape.

[00:22:05] Speaker 02:
He gives a report that doesn't explain that.

[00:22:07] Speaker 02:
Ebersole was supposed to be on the front of the engine and he jumped off without saying anything.

[00:22:14] Speaker 02:
This is pretty mitigating for Mr. Burley that's not in that report.

[00:22:18] Speaker 01:
Well, Your Honor, and I would agree with you if this one-page document that's about seven sentences long were in fact the investigation, but there was an entire hearing that included Mr. Embersol was a witness, Mr. Burley was a witness, Mr. Smith was a witness, and Mr. Burley's union rep was able to cross-examine all of these people.

[00:22:36] Speaker 01:
So all of these supposed mitigating facts

[00:22:38] Speaker 01:
where Ebersole was at the time, where Mr. Burley was at the time, the fact that Mr. Burley couldn't see the derail, all of this evidence about sort of what lights were blinking and what lights are not blinking, all of this was covered in the hearing because it wasn't Mr. Smith's job to perform the investigation.

[00:22:54] Speaker 01:
That was the role of the hearing officer.

[00:22:56] Speaker 01:
Andrette could not discipline

[00:22:59] Speaker 01:
Mr. Burley, based on Mr. Smith's one-page report alone, we submit that there was a 180-page transcript with exhibits and documents cross-examination.

[00:23:10] Speaker 01:
That, in fact, was the investigation here.

[00:23:12] Speaker 01:
And I think, more importantly, this is a race discrimination case.

[00:23:17] Speaker 01:
This is not an arbitration over whether Mr. Burley did, in fact, derail the engine.

[00:23:22] Speaker 01:
And largely, the facts of that, even the derailment, are not necessarily in dispute.

[00:23:27] Speaker 01:
There's no dispute that Mr. Burley's 120-ton train was off the tracks.

[00:23:32] Speaker 01:
And there's no dispute that Mr. Ebersole was not on the train at the time of the derailment.

[00:23:37] Speaker 01:
And there's no evidence in the record that Mr. Ebersole was required to be on the train.

[00:23:41] Speaker 01:
In fact, the very rule

[00:23:45] Speaker 02:
I thought he was required to be on the train.

[00:23:46] Speaker 02:
You dispute that.

[00:23:47] Speaker 02:
Amtrak doesn't require the conductor to be on the train.

[00:23:50] Speaker 01:
No, Your Honor.

[00:23:50] Speaker 01:
In fact, engineers are... I'm sorry, conductors are frequently not on the train.

[00:23:54] Speaker 02:
This is not... Not on the train or in a place where he's in the line of sight and can warn the conductor... I mean, the engineer...

[00:24:03] Speaker 02:
If they're coming up on a blue signal.

[00:24:05] Speaker 01:
Well, your honor, it's interesting that you mentioned that, because the very rule that requires someone to be in the line of sight also requires an engineer.

[00:24:12] Speaker 01:
If they don't have visual contact with the person that's supposed to be guiding them, they're not permitted to travel forward.

[00:24:18] Speaker 02:
Well, they're either supposed to be on the engine, in which case I think they wouldn't be visible, or be off and in the line of sight.

[00:24:24] Speaker 02:
Isn't that right?

[00:24:25] Speaker 02:
Well, I don't think the record supports that that is a hard and fast requirement, because there are frequently... And in fact, I think I was pointing to a place in the record where Eversole was disciplined because he wasn't where he was supposed to be.

[00:24:36] Speaker 02:
And you're saying that Amtrak doesn't require that, but they disciplined him anyway?

[00:24:39] Speaker 01:
Well, the record isn't clear as to whether he was actually required to be there, but you are absolutely right that he did receive discipline.

[00:24:44] Speaker 02:
For not being where he was supposed to be at the time of the derailment.

[00:24:47] Speaker 01:
That does appear to be why he was disciplined, but Your Honor, it's undisputed that Mr. Burley and Mr. Burley alone was the only person who could have pushed that train forward.

[00:24:55] Speaker 01:
And again, my point here is that this is not what is before the court and what would be before the jury.

[00:25:01] Speaker 01:
It's not whether Amtrak was right or wrong in this decision.

[00:25:04] Speaker 02:
I understand that it's a racial discrimination case and he has to show that the reason that he was treated differently and not given a waiver and discharged was because of his race, but he's trying to rely on circumstantial evidence.

[00:25:17] Speaker 02:
What about this foliation issue?

[00:25:18] Speaker 02:
What is the records retention or video policy that Amtrak employs in this yard?

[00:25:23] Speaker 02:
Why was that video A, not consulted, and B, destroyed?

[00:25:26] Speaker 01:
Well, Your Honor, first and foremost, there is absolutely no record evidence that there was ever a videotape of this.

[00:25:32] Speaker 01:
There was no mention of a videotape in this case until we received the other side's opposition to our summary judgment.

[00:25:37] Speaker 03:
And so... Didn't someone testify in the deposition that it was destroyed?

[00:25:41] Speaker 01:
No, Your Honor.

[00:25:42] Speaker 01:
The only mention of a video being destroyed came in Carl Edler's declaration.

[00:25:47] Speaker 01:
Now, he provides this declaration five years later.

[00:25:50] Speaker 01:
He doesn't give any detail that would indicate that there ever was a video.

[00:25:53] Speaker 02:
What about Runkel?

[00:25:54] Speaker 02:
Isn't Runkel a guy who runs the video system?

[00:25:56] Speaker 02:
He says Runkel destroyed it.

[00:25:58] Speaker 03:
Your Honor, I don't believe he said... Didn't he tell that he told... The Union... Oh, this is the Union representative's affidavit, right?

[00:26:07] Speaker 03:
Correct.

[00:26:07] Speaker 03:
He was told by Runkel, right, that Amtrak didn't raise the tape.

[00:26:11] Speaker 01:
He claimed that he was told by Runkle that the tape was destroyed.

[00:26:15] Speaker 01:
I don't think Runkle said that he personally destroyed that tape.

[00:26:18] Speaker 03:
No, I didn't say that.

[00:26:19] Speaker 03:
He says he used the passive.

[00:26:20] Speaker 03:
It was destroyed.

[00:26:21] Speaker 03:
It was erased.

[00:26:23] Speaker 01:
That does appear in Mr. Edler's declaration.

[00:26:25] Speaker 01:
Now, nobody has ever testified whether there was, in fact, a video or was not a video.

[00:26:30] Speaker 01:
And I think, as Your Honor mentioned... You know whether there was?

[00:26:32] Speaker 03:
I'm sorry?

[00:26:33] Speaker 03:
Do you know whether there was or wasn't?

[00:26:35] Speaker 03:
I do not.

[00:26:36] Speaker 03:
You just don't know?

[00:26:37] Speaker 01:
No, I just do not know.

[00:26:38] Speaker 01:
And frankly, even if there were, Appellant's claim is that Mr. Smith somehow ignored this video.

[00:26:44] Speaker 01:
And there's actually no evidence that Mr. Smith was aware of the video, had access to a video, and purposely decided not to review the video.

[00:26:50] Speaker 01:
But most importantly, again, this is a race discrimination case.

[00:26:53] Speaker 01:
So he would have to present some evidence that whether Mr. Smith was right or wrong, sloppy or thorough,

[00:27:00] Speaker 01:
that his decision was guided by racial animus, and there's just absolutely no evidence of that on the record.

[00:27:06] Speaker 03:
Well, could he rely on the fact that Amtrak can't seem to remember anything about this case?

[00:27:11] Speaker 01:
I'm sorry, I didn't hear you.

[00:27:12] Speaker 03:
Couldn't he rely on the fact that Amtrak employees can't seem to remember anything about this case, like was there a video, who was involved in the Eversol waiver, right?

[00:27:21] Speaker 01:
respectfully honor I would disagree with that because there has to be actual evidence of race discrimination and this court in Brady no there doesn't that's not what the law is you don't have to have actually can rely on circumstantial evidence that's what Brady's all about

[00:27:36] Speaker 01:
With respect, Your Honor, I think what Brady says is that the appellant here cannot just simply survive summary judgment by saying, well, I happen to disagree with the old law.

[00:27:45] Speaker 03:
You're totally right about that.

[00:27:49] Speaker 03:
But can't you draw inferences from a defendant's inability to remember key facts about a case?

[00:27:56] Speaker 01:
No, Your Honor.

[00:27:57] Speaker 01:
Respectfully, I believe you cannot.

[00:27:58] Speaker 01:
The jury cannot make the logical connection between somebody's inability to remember something five years after it occurred and race discrimination.

[00:28:06] Speaker 01:
And again, he has chosen to focus this case on Mr. Smith.

[00:28:09] Speaker 01:
And so whether Mr. Pesch or Mr. Sherlock can remember what occurred, whether there was a videotape or not, none of this is any evidence of race discrimination whatsoever.

[00:28:17] Speaker 02:
If Pelsher and Sherlock think they probably would have been the person to be involved in Ebersol's waiver, aren't they, by the same token, probably the people that made the decision on Burleigh's waiver?

[00:28:27] Speaker 01:
Yeah, I think you actually had the facts backwards, but the answer to that is no.

[00:28:31] Speaker 01:
There is absolutely no evidence that they would have been involved in Mr. Ebersol's waiver.

[00:28:35] Speaker 01:
Again, we have very different situations.

[00:28:37] Speaker 01:
We're talking about a derailment.

[00:28:38] Speaker 01:
In that derailment, it was undisputed that Mr. Burleigh, and Mr. Burleigh alone was on the engine.

[00:28:43] Speaker 01:
And so Mr. Pesci and Mr. Sherlock believed that one of the two of them would have been involved.

[00:28:47] Speaker 01:
And in fact, Mr. Pesci in his deposition said, given the nature of this case, I would have been at least involved in that decision.

[00:28:53] Speaker 01:
But whether Mr. Pesci and Mr. Sherlock made the right decision or the wrong decision about Mr. Burleigh's waiver, it's undisputed in the record that neither of those gentlemen knew Mr. Burleigh's race.

[00:29:03] Speaker 01:
So even if they were wrong, even if they overreacted here, again, this is a race discrimination claim.

[00:29:08] Speaker 01:
And so the very fact that they don't know Mr. Burleigh's race would preclude any reasonable jury from finding that they denied him a waiver because of his race.

[00:29:18] Speaker 01:
And now, the appellate attempts to sort of get around what we would submit as the fact that it's fatal to his case by saying, well, it was Mr. Smith who made these decisions.

[00:29:27] Speaker 01:
But I think, as Your Honor correctly noted, there's no record in the evidence that Mr. Smith had any involvement in the waiver.

[00:29:34] Speaker 01:
In fact, the only record evidence is that Mr. Smith denied

[00:29:38] Speaker 01:
that he was involved.

[00:29:40] Speaker 01:
And in fact, at his deposition, he was never even asked if he was involved in Mr. Ebersole's waiver.

[00:29:45] Speaker 01:
So whether or not it was fair or just that Amtrak denied Mr. Burleigh's waiver, there's simply no evidence

[00:29:54] Speaker 01:
on the record that we showed that it's discrimination.

[00:29:57] Speaker 01:
Now, because it's undisputed that Mr. Pesce was the person who terminated Mr. Burley, and it's undisputed that Mr. Pesce did not know Mr. Burley's race at the time he made that termination decision, Appellate is trying to make this into a caspal case.

[00:30:12] Speaker 01:
And we would submit that he's doing so is a misapplication of the Supreme Court's decision in Stahl v. Proctor Hospital.

[00:30:18] Speaker 01:
And that case is readily distinguishable from this case, because in Staub, which is a USERA case, there was direct evidence that the so-called real decision maker, not the de facto decision maker that the hospital was trying to rely on, but the quote, real decision maker, had actually evidenced some animus towards Mr. Staub's military service.

[00:30:40] Speaker 01:
In this case, the appellant argues that Mr. Smith was the quote, real decision maker.

[00:30:45] Speaker 01:
And there, again, absolutely no evidence, no statements by Mr. Smith, no conduct by Mr. Smith, nothing that any reasonable jury could find that Mr. Smith acted with discriminatory animus.

[00:30:58] Speaker 01:
So whether Mr. Smith was right, whether Mr. Smith was wrong, whether his investigation was sloppy, whether he should have reviewed a videotape or not, the question is, could a reasonable jury find that he was motivated by racial animus?

[00:31:10] Speaker 01:
And we respectfully submit the answer to that is no.

[00:31:13] Speaker 01:
Now, my colleague on the other side discussed sort of questioning Amtrak's business judgment, and that's exactly what this case is really about.

[00:31:20] Speaker 01:
So that's his case in Brady Held and in Fischbach and many others.

[00:31:24] Speaker 01:
It's not the role of the federal judiciary to stand as a super personnel department, in the words of this court, to micromanage everyday employment decisions.

[00:31:33] Speaker 01:
And so if he's going to challenge Amtrak's business judgment, he bears the very heavy burden of saying that Amtrak's decision was based on errors that were too obvious to be unintentional.

[00:31:44] Speaker 01:
Looking at the undisputed facts in this case,

[00:31:48] Speaker 01:
He has to demonstrate that Amtrak's decision that Mr. Burleigh was culpable and responsible for derailing that engine was either not honestly held or unreasonable.

[00:31:58] Speaker 01:
Now he doesn't allege that that decision was not honest.

[00:32:00] Speaker 00:
Well those cases articulate the similarly situated employee being treated differently as a way to show pretext and that seems to be what they're really resting a lot of their case on here.

[00:32:11] Speaker 00:
So I take your point as to the

[00:32:14] Speaker 00:
the broader issue, but they do seem to be trying to fit their case within that.

[00:32:19] Speaker 00:
Ebersol was similarly situated and got less severe sanctions.

[00:32:27] Speaker 00:
That seems to be what the case boils down to, at least as the plaintiff has portrayed it here.

[00:32:33] Speaker 01:
And certainly, let me address the similarly situated aspect of this case.

[00:32:37] Speaker 01:
So again, because this court can't sit as a super personnel department, the two individuals need to be similarly situated in all material respects, which this court has interpreted to mean they need to be nearly identical in all relevant aspects of their employment.

[00:32:52] Speaker 01:
The focus of his argument is that Amtrak somehow treated Mr. Burley and Mr. Ebersol differently with respect to the

[00:32:58] Speaker 01:
the derailment.

[00:33:00] Speaker 01:
And so we suppose that there are two major reasons why Mr. Ebersol is not similarly situated.

[00:33:05] Speaker 01:
First and foremost, this is a train derailment.

[00:33:08] Speaker 01:
And it's undisputed that Mr. Ebersol was not on the train at the time.

[00:33:12] Speaker 01:
There's no dispute that Mr. Burleigh was the only person who physically moved that train from- Under Amtrak rules, isn't the conductor ultimately responsible for the train?

[00:33:22] Speaker 01:
Your Honor, the conductor is ultimately responsible for the train when he is on the train.

[00:33:26] Speaker 01:
But it's undisputed that Mr. Burley was the one that was solely responsible, given that Mr. Ebersole was not on the train.

[00:33:32] Speaker 03:
But if I could sort of address the second... Yeah, what's your second point?

[00:33:35] Speaker 03:
Is it that there's no evidence that Smith was involved in Ebersole's discipline?

[00:33:40] Speaker 01:
You're absolutely right, Your Honor.

[00:33:41] Speaker 03:
That was a question.

[00:33:44] Speaker 03:
I said he wasn't.

[00:33:45] Speaker 03:
I asked you whether that is at your second argument.

[00:33:48] Speaker 01:
That is our second argument.

[00:33:50] Speaker 01:
So no reasonable jury could find that Mr. Burleigh was treated differently than Mr. Ebersol because of his race if it was not, in fact, the same person who made those two decisions.

[00:33:58] Speaker 01:
And as we've noted, there's absolutely no evidence on the record that would indicate that Mr. Smith.

[00:34:03] Speaker 03:
But that's because Amtrak can't remember, has no recollection of who did it.

[00:34:07] Speaker 03:
That's why I asked you the question about.

[00:34:09] Speaker 03:
You know, I mean, one of the witnesses testified that the waiver decisions were normally made by the assistant superintendent or someone above.

[00:34:18] Speaker 03:
Smith is an assistant superintendent.

[00:34:20] Speaker 03:
Amtrak can't remember who did it.

[00:34:22] Speaker 03:
Why can't the jury infer from Amtrak's inability to remember that maybe it was Smith?

[00:34:28] Speaker 01:
Because that would be pure speculation, because the only record evidence here is that Mr. Smith said he didn't make the decision.

[00:34:34] Speaker 03:
But Amtrak has failed to show, I mean, Amtrak has the ability to tell us who was involved, doesn't it?

[00:34:42] Speaker 01:
I have sort of two responses on Amtrak.

[00:34:44] Speaker 01:
First and foremost, I don't think Amtrak bears the burden here, because under the sort of burden-shifting framework, Amtrak's burden was to come up with- So if I say, so if there's a rule that

[00:34:54] Speaker 03:
It is a rule that decisions are made by either A or B. That's the rule.

[00:34:59] Speaker 03:
A is one of the people, and we don't know whether B did it.

[00:35:05] Speaker 03:
And the defendant says, well, we don't remember who did it.

[00:35:10] Speaker 03:
Why can't the jury infer that, well, they're the defendant?

[00:35:13] Speaker 03:
That's pretext.

[00:35:15] Speaker 01:
Well, first, Your Honor, you're speaking about the testimony of Zach Pinkley.

[00:35:19] Speaker 03:
I'm talking about Smith, yeah.

[00:35:21] Speaker 03:
He said it's either made by the assistant superintendent or someone above.

[00:35:25] Speaker 03:
Smith was the assistant superintendent, right?

[00:35:27] Speaker 03:
Correct.

[00:35:28] Speaker 03:
Mr. Smith... And Amtrak can't remember.

[00:35:30] Speaker 03:
That's all we've got.

[00:35:33] Speaker 03:
Well, Your Honor, the evidence on the record is that the decision... Smith is clearly one of the people who could have made the decision, and it sort of makes sense that, you know, if he was involved in the early one, why wouldn't he be involved in this one?

[00:35:43] Speaker 01:
We are there's absolutely no evidence that Mr. Smith was involved in the Burley one or the Ebersol one.

[00:35:48] Speaker 02:
In fact, just looking at me, this is an employer, a common employer with common priorities and sense of the importance.

[00:35:55] Speaker 02:
I mean, you show a great amount of indignation about the seriousness of this particular event.

[00:36:01] Speaker 02:
But, you know, the appellant in the brief talks about

[00:36:05] Speaker 02:
Caucasian engineers speeding when his locomotive collided with a stop train for $36,000 of damage, and he gets suspended for five days.

[00:36:13] Speaker 02:
And another one who fails a drug test showing cocaine in his urine, and his train collides with another train, and he gets later disciplined.

[00:36:26] Speaker 02:
I mean, there is a pattern where you think, at some level, these do become relevant.

[00:36:31] Speaker 02:
This is out of line with

[00:36:33] Speaker 02:
What has been done by a number of different supervisors in a number of different engineer situations with serious, serious damage to property.

[00:36:42] Speaker 01:
Well, with respect to our danger to the individuals, I'd like to first address the drug case.

[00:36:47] Speaker 01:
Drugs are handled in a very specific way.

[00:36:49] Speaker 01:
And this isn't on the record, but drugs are handled in a very specific way.

[00:36:53] Speaker 01:
So it's almost impossible to compare a drug case.

[00:36:55] Speaker 01:
to another case.

[00:36:57] Speaker 01:
This involves questions of whether other white engineers can be adequate comparators.

[00:37:02] Speaker 01:
But the record evidence on each one of those particular instances is that those individuals were given waivers by either Mr. Sherlock or Mr. Petch.

[00:37:11] Speaker 01:
But it's undisputed, even if

[00:37:13] Speaker 01:
those people were adequate comparators, it's undisputed that neither Pesce nor Sherlock knew Mr. Burleigh's race.

[00:37:19] Speaker 01:
And so, even if Mr. Burleigh could meet the technical requirements for a comparator analysis, no reasonable jury could find that those individuals were treated more favorably than Mr. Burleigh because of Mr. Burleigh's race, because it's undisputed that Mr. Pesce and Mr. Sherlock did not know Mr. Burleigh's race at the time that they made any decision.

[00:37:37] Speaker 01:
And Your Honor, I see that I'm out of time, so unless there are any additional questions.

[00:37:41] Speaker 03:
No, we have no other questions.

[00:37:42] Speaker 03:
I think the Council have any time left.

[00:37:45] Speaker 01:
Thank you.

[00:37:46] Speaker 03:
Okay, you can take two minutes if you'd like.

[00:38:01] Speaker 02:
Mr. Carl, is there any evidence in the record that Smith was aware that Mr. Ebersole was not on the engine at the time that this accident occurred, at the initial time that he made his report?

[00:38:12] Speaker 04:
Yes, there was.

[00:38:12] Speaker 04:
Number one, there's the disciplinary report that I cited earlier that was given to Ebersole that says you're being charged with jumping off the engine.

[00:38:22] Speaker 04:
Secondly, Burleigh told them.

[00:38:25] Speaker 04:
And thirdly, there's an interview with the

[00:38:29] Speaker 04:
with Ebersole that was conducted approximately an hour after the, after the derailment.

[00:38:38] Speaker 02:
Did Smith appreciate that Ebersole had never told Burleigh that he got off?

[00:38:42] Speaker 02:
I mean, it seems like the facts as Ebersole agrees them to be later render Burleigh to be

[00:38:50] Speaker 02:
not culpable, but just kind of snooker.

[00:38:54] Speaker 02:
And it's not clear that Smith appreciated that?

[00:38:58] Speaker 04:
Yes, that's what Mr. Burley told them.

[00:39:03] Speaker 04:
But to go back to the taping system, this is on page 422 of the appendix.

[00:39:10] Speaker 02:
So did Smith know that?

[00:39:13] Speaker 02:
Did Smith know, because you're putting a lot on Smith, did he know that

[00:39:20] Speaker 02:
Burleigh was unaware that Eversole had gotten off, because there's a different level of care.

[00:39:25] Speaker 02:
If you know that you're the only person driving, then you've got to take a different level of care if you think your teammate is on there.

[00:39:32] Speaker 02:
And I guess the question, since this all gets down to Smith's intent, you need to show that Smith knew that but still treated Burleigh harshly.

[00:39:41] Speaker 02:
What points to Smith, knowing that Burleigh was unaware?

[00:39:45] Speaker 04:
Yes, he told.

[00:39:47] Speaker 04:
Burleigh told Smith.

[00:39:50] Speaker 02:
Burleigh told Smith right away?

[00:39:53] Speaker 04:
Yes.

[00:39:54] Speaker 02:
And he testified, and where's that?

[00:39:56] Speaker 02:
Yes.

[00:39:56] Speaker 02:
Where should I look in the record for that?

[00:39:58] Speaker 04:
I'll find out, Your Honor.

[00:40:00] Speaker 02:
Okay.

[00:40:01] Speaker 04:
With respect to the question about the taping system, I don't want to belabor this, but this is Bernard Campbell's deposition.

[00:40:09] Speaker 04:
Campbell was one of the people on the investigation committee.

[00:40:12] Speaker 04:
On page 422 of the appendix, he says, Dave Smith would definitely have looked at the tapes.

[00:40:18] Speaker 04:
With respect to the question about what Smiths tie in here,

[00:40:22] Speaker 04:
Pingley says he took the request to Smith.

[00:40:25] Speaker 04:
Adler, the union rep, says he talked to Smith about the waiver.

[00:40:29] Speaker 04:
So for Smith to say he doesn't remember is a sort of testimony that, when it's considered with all the other testimony, the jury certainly might not.

[00:40:40] Speaker 04:
I might not believe.

[00:40:41] Speaker 04:
From the point of view of what happened in the accident, what happened in the derailment.

[00:40:47] Speaker 03:
Would you finish up your sentence?

[00:40:48] Speaker 03:
Okay.

[00:40:49] Speaker 04:
Direct evidence is not required.

[00:40:51] Speaker 04:
There's a dispute of fact as to what really happened.

[00:40:54] Speaker 04:
And this court's decision in this court's decision in Primus versus DC is that that's why you have a jury to sort all this out.

[00:41:05] Speaker 04:
Okay.

[00:41:06] Speaker 03:
Thank you.

[00:41:06] Speaker 03:
Case submitted.

[00:41:07] Speaker 03:
Thank you.