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July 6, 1995

SOON PARK, Plaintiff,

The opinion of the court was delivered by: STANLEY S. HARRIS

 Plaintiff alleges that defendant discriminated against him on the basis of his race and national origin and retaliated against him because he filed an administrative complaint with the Equal Employment Opportunity Commission ("EEOC"), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq., as amended. The Court held a two-day bench trial beginning on April 3, 1995. This Opinion sets forth the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a). Based on the credible evidence presented at trial, the Court finds that defendant did not discriminate against plaintiff nor did it retaliate against him for engaging in protected activity.

 Findings of Fact

 Plaintiff, an Asian-American of Korean descent, has been employed with the Washington Metropolitan Area Transit Authority ("WMATA") as a mechanic in the Power Department since 1974. Mechanics are assigned to report to one of three central rail stations -- West Falls Church, New Carrollton, and Twinbrook. At the time of the events in question, plaintiff held the position of AA Leadman at the West Falls Church station (also known as K99) on the midnight shift (10:00 p.m. to 6:00 a.m.). Plaintiff was supervised by John E. Schlager, Sr., a man with whom he had worked in the late 1970's and from mid-1989 to early 1990. Plaintiff described their working relationship as "not good."

 On the night of January 2, 1990, Schlager, through the Maintenance Operations Center ("MOC"), directed plaintiff's crew to change the lightbulbs in the tunnel that goes from the Rosslyn station to the Ballston station. Plaintiff and a member of his crew, Sang Han, went to the storage room at the West Falls Church station to obtain lightbulbs, but found that the door was locked. Plaintiff telephoned Schlager and requested a key. While waiting for Schlager to arrive, Han mentioned that he had been paid that evening, which angered plaintiff, who had not been paid. This situation was aggravated by recent events. First, the week before, on December 26, 1989, Schlager had accused plaintiff of failing to follow certain procedures in the repair and replacement of some breakers, which plaintiff felt was wholly unjustified. Second, plaintiff was usually the person designated by Schlager to distribute the checks, yet was overlooked on this occasion.

 When Schlager arrived, it was about 1:30 a.m. Plaintiff questioned him about plaintiff's paycheck. Then, Schlager went into the storage room to get the lightbulbs. What happened next is a subject of dispute. Schlager alleges that plaintiff punched him in the arm, a charge that plaintiff denies. In any event, an investigation immediately ensued. Around 2:00 a.m., Schlager called MOC, and requested that security be dispatched to his location. Arthur Flasher, a WMATA police officer, responded to the call, and interviewed plaintiff, Schlager, and Han.

 At all times, plaintiff has denied that he hit Schlager, and Schlager has maintained the opposite. Han, who was in the same room with plaintiff and Schlager, and thus in a position to observe what happened, was not thoroughly questioned at the time of the incident because his initial statement "I didn't see anything" was construed by Flasher and others involved in the investigation as meaning that Han was not in a position to see anything, rather than, as Han later contended, that he in fact observed the events in question and that what he observed was that plaintiff did not hit Schlager.

 Mark Griffiths, then Acting Superintendent of the Power Department, was informed of the alleged assault early that morning (January 3), and conducted the rest of the investigation. Based on his personal knowledge of plaintiff's previous physical altercations, Schlager's report, and the report of Schlager's doctor, Elie G. Debbas, Griffiths concluded that plaintiff had assaulted Schlager. *fn1" See Defendant's Ex. 23. Griffiths testified that the most convincing piece of evidence was the statement from Dr. Debbas that his January 5 examination of Schlager "revealed him to suffer from a bruise to his left upper arm which is compatible with his complaint." Defendant's Ex. 17. This report was of special significance to Griffiths in this particular case because he had only one person's word against another's.

 On January 16, 1990, Griffiths called plaintiff, Han, and Eddie Gregg to his office, and informed plaintiff that due to the January 3 assault, his employment with WMATA was terminated, effective immediately. Plaintiff filed a grievance with his union, Local 689 of the Amalgamated Transit Union. He also filed an administrative complaint with the EEOC on about March 13, 1990. WMATA settled the grievance with the union. Under the terms of the settlement agreement, plaintiff was reinstated effective May 13, 1990, and the period from January 16 to May 12 was deemed a disciplinary suspension without pay based on a finding that plaintiff had assaulted Schlager.

 When he returned to work on May 14, 1990, plaintiff was assigned to the West Falls Church station in the position of AA Mechanic, which was a step lower than plaintiff's previous position of AA Leadman. He also was assigned to the evening shift, rather than the midnight shift which he routinely had requested and received prior to his termination. Griffiths testified, and the Court finds credible, that he placed plaintiff in the position of AA Mechanic rather than AA Leadman because of the confusion caused by the "pick" system. Under this system, the employees select a location and shift every six months (December and June), and are granted their choices according to seniority. The "pick" evenly distributes employees throughout the system and throughout the day and night. By the time plaintiff returned, the AA Leadman assignments already had been completed. Griffiths wanted to place plaintiff at West Falls Church, the location plaintiff previously had picked because of its proximity to his home, but, in the interest of avoiding a confrontational situation, did not want to place plaintiff in a position where he would be working with Schlager. When plaintiff brought the problem to the attention of his supervisor, Don Washington, he was placed as a AA Leadman.

 In June 1990, another pick was done. Plaintiff picked the AA Leadman midnight shift at the West Falls Church station, but did not get it. Instead, Benny Baker got that slot, who plaintiff complained was less qualified although Baker ranked higher in seniority. Plaintiff complained to the union, and the pick was redone. After the pick was redone, plaintiff received his pick as a AA Leadman in the midnight shift at West Falls Church. As a result, plaintiff was working with Schlager again for the next six month period.

 During that period, plaintiff suspected that certain adverse employment actions that occurred were being taken against him in reprisal for his filing of the EEO charge. In mid-August 1990, plaintiff discovered that his pay had been docked for coming in four minutes late one day in July. Schlager testified that, although he cannot recall the circumstances surrounding that particular disciplinary action, the general policy was that occasional instances of an employee arriving late were overlooked, but that if an individual was habitually late, he would be written up. *fn2" This policy would have been applied to plaintiff's situation. As there is a complete absence of evidence on the circumstances surrounding plaintiff's tardiness, the Court is unable to determine that this disciplinary action was unjustified.

 On August 30, 1990, while plaintiff was out on assignment fixing a breaker, he received a radio call from MOC which he answered. MOC, however, never received plaintiff's call, most likely due to a faulty radio, and plaintiff received a disciplinary notice the next week. The disciplinary action was cancelled when the situation was explained.

 On October 3, 1990, plaintiff and Han were assigned to switch three stations (CO5, CO6, and CO7), and completed the tasks in 35 minutes. Schlager gave plaintiff a disciplinary warning for taking too long. Plaintiff protested that two other crew members, Timbrook and Kim, who were assigned to switch only one station, also took 35 minutes yet received no disciplinary warning. Schlager testified that the length of time it takes to complete a switching assignment at a station varies, depending on the location and other ...

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