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Mastro v. Pepco

February 25, 2005


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Brian A. Mastro, a Caucasian, worked at the Potomac Electric Power Company ("Pepco") from October 2, 1989 to May 20, 2002, when he was discharged for a "major incident of lack of candor" and a "major incident of unsatisfactory job performance." Mr. Mastro sues Pepco, arguing that Pepco's pre-discharge investigation was flawed and its termination decision the result of reverse race discrimination. He also sues for defamation based on the alleged improper publication of information regarding his termination.

Mr. Mastro offers only argument, not evidence, that Pepco's decision to terminate his employment was tainted by discriminatory animus. Similarly, he offers no evidence to support his argument that any of the defendants improperly published information regarding his termination. The Court will grant the motion for summary judgment filed by Pepco and the individually-named defendants and dismiss the complaint.


After more than twelve years of employment, Mr. Mastro was terminated by Pepco on May 20, 2002. Pepco dismissed him because Mr. Mastro's supervisors concluded that he had not told the truth about a subordinate's absence from work.

Mr. Mastro holds bachelor's degrees in psychology and electrical engineering, and a master's degree in engineering. Second Amend. Compl. ¶ 9. From 1989 to 1996, he worked as a system engineer for Pepco. In 1996, Mr. Mastro was promoted to Distribution Project Engineer in the Underground Lines Section. Id. ¶ 10. In 2001, he became Distribution Project Engineer for Underground High Voltage, a position he held immediately prior to his termination. Id.

During his tenure, Mr. Mastro supervised work crews and managed numerous large construction and electrical projects. Id. at 11. Mr. Mastro received favorable employment reviews and his supervisors had no previous reason to doubt his honesty or integrity. Sigafoose Dep. at 8; Pancholi Dep. at 24-25.

On Sunday, February 17, 2002, one of Mr. Mastro's subordinates, Donald Harsley, was arrested after threatening to burn down a restaurant. Harsley Dep. at 27-30, 52, 56. Mr. Harsley is an African-American who, at the time, was a probationary employee and had worked for the company for less than a year. Because he was jailed after his arrest, Mr. Harsley was absent from work during the subsequent week. Pancholi Dep. at 70-72.

The exact timing of when Mr. Harsley informed Mr. Mastro of the reason for his absence is a disputed fact that was central to Pepco's decision to terminate Mr. Mastro. Mr. Harsley insists that he left a message with Mr. Mastro on Monday, February 18, informing him that he needed two days of vacation because he was in jail. He also states that he spoke with Mr. Mastro on the evenings of Tuesday, February 19, and Wednesday, February 20, and told him that he was still in jail and needed more vacation time. Harsley Dep. at 27-28, 47-50. Mr. Mastro agrees that he spoke with Mr. Harsley on Tuesday, Mastro Dep. at 34-35, but argues that he did not know that Mr. Harsley was in jail until Wednesday evening or Thursday. Instead, Mr. Mastro claims that "[b]ased on rumors that Mr. Harsley was in jail," he consulted with a Pepco official about company policy in such situations, id. at 29-30, and informed Mr. Sunil Pancholi, his direct supervisor, on Thursday morning that Mr. Harsley was in jail. Id. at 35-36. Mr. Pancholi reported what he had learned to a Pepco compliance investigator, David Duarte. Pancholi Dep. at 69-70; Duarte Dep. at 11.*fn1 Mr. Duarte is African-American and Mr. Pancholi is East Indian. Pltf.'s Opp. at 2. Based on information obtained from Mr. Mastro, Pepco planned to fire Mr. Harsley for lying to his supervisor about the fact that he was in jail when he asked for vacation time off. Pancholi Dep. at 88, 90. During an April 11 meeting attended by management and union representatives, Mr. Harsley insisted that a message had been left with Mr. Mastro on Monday, February 18, informing him that Mr. Harsley was in jail. Harsley Dep. at 27-28, 47-50; Pancholi. James Bryant, the employee who actually recorded vacation schedules, was called into the meeting. Bryant Dep. at 6, 16, 20-21. Mr. Bryant is an African-American. Pltf.'s Opp. at 2. Mr. Bryant reported that Mr. Mastro instructed him to mark Mr. Harsley as being on vacation on the morning of Tuesday, February 19, because Mr. Harsley was in jail. Bryant Dep. at 10-13, 21-22. Mr. Bryant was able to recall the day this happened because he was off work the next day for his annual checkup. Bryant Dep. at 14-15. Pepco decided not to discharge Mr. Harsley but extended his probationary period for eighteen months. Pancholi Dep. at 91-92.

Thereafter, Messrs. Pancholi and Duarte questioned Mr. Mastro further about the events of that week. Mr. Mastro continued to maintain that he did not learn that Mr. Harsley was actually in jail until Thursday, February 21, and that Mr. Harsley had a pre-scheduled vacation day on Tuesday, February 19. Pancholi Dep. at 112-19; Duarte Dep. at 31-34. Mr. Mastro provided a written summary of the events as he recalled them. Pancholi Dep. at 124-22; id. Exh. D0238 (written submission from Mr. Mastro) ("Communication on Tuesday and Wednesday, did not state that Mr. Harsley was in Jail. He said he was arrested for domestic problems. Witnesses misheard my comments about arrest and assumed he was in jail or possibly knew this already from another source.").

After internal consultations, Pepco managers concluded that Mr. Mastro had not been candid. On May 10, 2002, Mr. Pancholi issued a memorandum to Mr. Mastro: stating that Plaintiff knew of a Pepco probationary employee's incarceration on February 19, 2002, and the employee's request for vacation that day. The memorandum further stated that Plaintiff approved daily vacation requests from February 19-22, 2002, knowing that the employee was incarcerated, and falsely advised management that he became aware of the employee's incarceration on February 21, 2002. The memorandum further stated that Plaintiff also advised management that the employee had been pre-approved for vacation for February 19, 2002.

According to the memorandum, when Plaintiff was directed by management to provide written documentation of his involvement, he continued to deny that he knew of the employee's incarceration on February 19, 2002. The memorandum concluded that Plaintiff's actions "include serious/major incidents of lack of candor and a serious/major incident of unsatisfactory performance," that Plaintiff would be placed on crisis suspension, and that discharge appeared warranted. Second Amend. Compl. ¶ 25; see Pancholi Dep. Exh. 7.*fn2

A meeting to discuss Mr. Mastro's continued employment with Pepco was convened on May 14. Second Amend. Compl. ¶ 29.*fn3 Mr. Mastro was steadfast, asserting that Mr. Harsley had not informed him that Mr. Harsley was in jail until Thursday, February 21. Duarte Dep. at 76. The department calendar, where Mr. Mastro said he had written a pre-scheduled vacation day for Mr. Harsley for Tuesday, February 19, and various time sheets were reviewed. The calendar showed that Mr. Harsley was off for the week; Rudy Bradshaw was off on February 19 and 20; and Mr. Bryant was off on February 20. However, Mr. Harsley's time sheet was coded for unscheduled vacation on February 19. Duarte Aff. at ¶ 6. At the end of the meeting, Messrs. Pancholi, Duarte, and Wisniewski agreed that Mr. Mastro should be terminated unless further investigation suggested that Mr. Mastro had indeed been telling the truth. Pancholi Dep. at 165-66.

Thereafter, Mr. Duarte re-interviewed Mr. Harsley on May 18. Mr. Harsley was also steadfast, asserting that he had informed Mr. Mastro that he was in jail on the evening of February 18. Mr. Duarte interviewed Jose Smith, a fellow employee and friend of Mr. Harsley. Mr. Smith reported that Mr. Mastro had asked Mr. Smith on February 19 if he knew how to contact Mr. Harsley's girlfriend because Mr. Mastro had received a message on his answering service from Mr. Harsley stating that he was in jail. Duarte Dep. at 12-13, 45-46. Further, Mr. Mastro reportedly told Mr. Smith that he had put Mr. Harsley on vacation. Id.*fn4 Mr. Pancholi spoke with an employee, Dexter Herbert, who stated that Mr. Mastro had asked him for the phone number of Mr. Harsley's girlfriend on Tuesday, February 19, and that Mr. Mastro had indicated that he wanted to find out more about Mr. Harsley's arrest. Pancholi Dep. at 159; Pancholi Aff. ¶ 11. Both Mr. Pancholi and Mr. Duarte confirmed with Mr. Bryant that Mr. Harsley had not had pre-scheduled vacation on February 19 and that he recalled a conversation with Mr. Mastro concerning Mr. Harsley's incarceration. Pancholi Dep. at 128, 163; Bryant Dep. at 24-25.*fn5

As a result of this investigation, Pepco managers concluded that they believed Messrs. Harsley, Bryant, and Smith, not Mr. Mastro. Duarte Aff. ΒΆ 10. They concluded that Mr. Mastro had not told them the truth. Pancholi Dep. at 139-40, 142; Duarte Dep. at 48. Mr. ...

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