Mastro v. Potomac Elec. Power Co.

Decision Date19 May 2006
Docket NumberNo. 05-7044.,05-7044.
Citation447 F.3d 843
PartiesBrian A. MASTRO, Appellant v. POTOMAC ELECTRIC POWER COMPANY, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 03cv01865).

Charles W. Day, Jr. argued the cause for appellant. With him on the briefs was Joseph D. Gebhardt.

James P. Gillece, Jr. argued the cause and filed the brief for appellee.

Before: GINSBURG, Chief Judge, and ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge.

After he was terminated for a purported lack of candor, Appellant Brian Mastro filed suit against his employer, Potomac Electric Power Company (Pepco), and two supervisors (collectively, Appellees), alleging (1) discrimination in violation of Title VII of the Civil Rights Act of 1964 and (2) defamation. The district court granted summary judgment to Appellees. We affirm the district court's decision with respect to the defamation claims; however, we disagree with the court's determination that Mastro failed to demonstrate a prima facie case of reverse discrimination and ultimately conclude he raised a genuine issue of material fact concerning the legitimacy of Pepco's nondiscriminatory reason for his termination, specifically, whether it was due to a lack of candor, as Appellees contend, or to discrimination, as Mastro asserts. Accordingly, we reverse and remand Mastro's discrimination claim for further proceedings.

I

Brian Mastro, a Caucasian, began working for Pepco in 1989 as a system engineer. He was promoted in 1996 and served as Distribution Project Engineer, Underground High Voltage at the time of the events giving rise to this litigation. Prior to the episode central to this case, Pepco had never disciplined Mastro, and his supervisors had no reason to question his honesty.

One of the people Mastro supervised was a probationary employee, Donald Harsley, an African-American who had worked at Pepco for less than a year. On Sunday, February 17, 2002, Harsley was arrested and jailed after he confronted an ex-girlfriend and threatened to kill her and burn down her home and place of employment. As a result, he was absent from work beginning Tuesday, February 19, through Friday, February 22.1 He returned to work the following Monday, February 25.

The date Mastro learned Harsley was actually in jail is the crux of the dispute that eventually led to Mastro's termination. Harsley claims he was always candid about his circumstances. He maintains he left a phone message for Mastro on the evening of Monday, February 18, requesting two days of vacation because he was in jail. He also claims he spoke to Mastro on the evenings of Tuesday, February 19, and Wednesday, February 20, telling Mastro that he was still incarcerated and needed more vacation time, which Mastro granted.

Mastro, in contrast, contends he was unaware Harsley was in jail until Wednesday afternoon or Thursday morning of that week. According to Mastro, he initially received a phone call from Harsley's girl-friend on Tuesday asking if Harsley could receive vacation time. Mastro insisted Harsley must personally request vacation time, and later that evening, Harsley called, explaining that he had been arrested for "family problems" and needed time off to resolve the matter. Mastro says that though he approved the vacation, he did not know at the time that Harsley was in jail; he did not ask about it, nor did he have reason to suspect as much. He maintains he only learned of Harsley's incarceration during another phone call with Harsley that took place on either the afternoon of Wednesday, February 20, or the morning of Thursday, February 21. During that subsequent call, Mastro, acting on workplace rumors, asked Harsley if he was in jail, which Harsley admitted. It is undisputed that on Thursday, February 21, Mastro informed his supervisor, Sunil Pancholi, who is of East Indian descent, that Harsley was incarcerated.

Pepco initially planned to fire Harsley for lying to Mastro, his supervisor, about his whereabouts when he asked for vacation time. At a meeting with Harsley and his union representatives in early April, however, company officials reconsidered after Harsley described his version of events and claimed that Mastro had always known Harsley's whereabouts when he granted the vacation time. James Bryant, an African-American employee who was one of Mastro's "lead" men (that is, second-in-command) and kept the time-sheets for Mastro's team, was called into the meeting. Bryant stated that on the morning of Tuesday, February 19, Mastro had told him to mark Harsley down for vacation because Harsley was incarcerated.

Because the information revealed at the meeting appeared to contradict Mastro's earlier representations, Pepco launched an internal investigation, headed by David Duarte, an African-American employed as a Senior Employee Relations Investigator with Pepco, to determine who, if anyone, had been untruthful. Duarte spoke to Harsley, who stuck to the story that he had notified Mastro on Monday, February 18th, that he was in jail and needed vacation. Duarte also spoke with Bryant, the timekeeper, who repeated his statement regarding Mastro's purported knowledge of Harsley's incarceration on Tuesday, February 19th. Duarte interviewed a third employee, Jose Smith, who said that on Tuesday, February 19, Mastro had asked him if he knew Harsley's girlfriend's phone number. According to Smith, Mastro explained that he needed to get in touch with her because he had received a phone message from Harsley indicating Harsley was in jail, but he had no way to contact Harsley. While Duarte was conducting his investigation, Pancholi held a meeting with Mastro, which Duarte attended, to explain to Mastro the contradictory accounts and to hear Mastro's side of the story. Mastro continued to insist that he was unaware of Harsley's incarceration until later in the week in question, and, following the meeting, he provided a written account of his version of events.

Pepco officials ultimately concluded that Mastro had not been truthful. On May 10, 2002, Pancholi issued a memorandum to Mastro placing him on crisis suspension due to "serious/major incidents of lack of candor and a serious/major incident of unsatisfactory performance." The memorandum informed Mastro that his discharge was warranted and requested his presence at a May 14 meeting to discuss his future employment. At that meeting, Mastro persisted in maintaining his innocence. Immediately afterward, Pancholi, Duarte, and another Pepco official decided that, barring any new findings in the following week, Mastro would be terminated. Further investigation failed to uncover any new information, and on May 20, Pancholi issued Mastro a memorandum terminating his employment for the same reasons stated in the May 10 memorandum.2 The memoranda documenting Mastro's termination were circulated to certain members of Pepco's management and Employee Relations Department and to the District of Columbia Department of Employment Services.3

Mastro initially filed a defamation suit against Pepco, Pancholi, and Duarte in the District of Columbia Superior Court and a discrimination suit against the same defendants in the United States District Court for the District of Columbia. The claims were eventually consolidated in the district court. Mastro's second amended complaint alleges one count of discriminatory termination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and two counts of defamation based on purportedly improper publication of the May 10 and May 20 memoranda (collectively, the termination memoranda). Appellees moved for summary judgment on all counts, which the district court granted. Mastro v. Pepco, 398 F.Supp.2d 67, 78 (D.D.C.2005). On the discrimination count, the district court concluded Mastro had failed to establish a prima facie case of discrimination because, first, he had not established sufficient "background circumstances" suggesting Appellees tended to discriminate against white employees; and, second, he did not produce evidence that he was replaced by someone outside his protected class or that similarly situated persons outside of his class were retained. Id. at 76. On the defamation counts, the district court concluded Mastro failed to produce evidence that Appellees published the termination memoranda outside the scope of applicable privileges. Id. at 78. Mastro timely appealed.

II

We review the district court's grant of summary judgment de novo. Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits filed pursuant to discovery show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505 91 L.Ed.2d 202 (1986). We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). We will affirm only if no reasonable jury could find in favor of the nonmoving party. Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504, 507 (D.C.Cir.2005).

A

We begin with Mastro's discrimination claim. Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The protections of Title...

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