United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 24, 2006 Decided May 19, 2006
No. 05-7044
BRIAN A. MASTRO ,
APPELLANT
v.
POTOMAC ELECTRIC POWER COMPANY , ET AL.,
APPELLEES
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
2
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 discrimi-
nation 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,
3
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 eve-
ning 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, Febru-
ary 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 girlfriend 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 “fam-
ily 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.
1
Monday, February 18 was the President’s Day holiday, and
Harsley was not required to be at work that day.
4
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 repre-
sentatives in early April, however, company officials reconsid-
ered 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 timesheets 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 Investi-
gator 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 num-
ber. According to Smith, Mastro explained that he needed to
get in touch with her because he had received a phone mes-
sage 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 ac-
counts and to hear Mastro’s side of the story. Mastro contin-
5
ued 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 memoran-
dum to Mastro placing him on crisis suspension due to “seri-
ous/major incidents of lack of candor and a serious/major
incident of unsatisfactory performance.” The memorandum
informed Mastro that his discharge was warranted and re-
quested his presence at a May 14 meeting to discuss his future
employment. At that meeting, Mastro persisted in maintain-
ing 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 termi-
nating 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
2
As for Harsley, Pepco officials concluded that he had been
truthful, but they extended his probationary employment status to
eighteen months for unexcused absences stemming from his time in
jail.
3
Pepco officials transmitted the memoranda to the D.C.
Department of Employment Services pursuant to the government’s
“Request for Separation Information” following Mastro’s application
for unemployment benefits. District of Columbia law places
additional conditions for the receipt of benefits on “any individual
who has been discharged for gross misconduct occurring in his most
recent work.” D.C. Code § 51-110(b)(1).
6
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 publica-
tion 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 pro-
tected 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 ap-
pealed.
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 plead-
ings, 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
7
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
(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 (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 individ-
ual, 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 VII apply to minority and nonminority
employees alike. McDonald v. Santa Fe Trail Transp. Co.,
427 U.S. 273, 278-80 (1976). “The emphasis of both the
language and the legislative history of the statute is on elimi-
nating discrimination in employment; similarly situated em-
ployees are not to be treated differently solely because they
differ with respect to race, color, religion, sex, or national
origin.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63,
71 (1977). “This is true regardless of whether the discrimina-
tion is directed against majorities or minorities.” Id. at 71-72.
Where, as here, a plaintiff produces no direct evidence of
discrimination, we analyze a Title VII claim under the familiar
burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), initially placing the burden on
the plaintiff to establish a prima facie case of discrimination,
id. at 802; shifting it to the defendant employer “to articulate
8
some legitimate, non-discriminatory reason” for the employ-
ment action, id.; and shifting it back to the plaintiff to prove
by a preponderance of the evidence that the proffered reasons
are a pretext for discrimination, Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
The district court employed a four-part framework to
assess the prima facie case, requiring a plaintiff to show (1)
membership in a protected class; (2) performance at or near
the level legitimately expected by the employer; (3) discharge;
and (4) replacement by a person outside the protected class or
retention of similarly situated individuals outside the protected
class. Mastro, 398 F. Supp. 2d at 74 (quoting Waterhouse v.
District of Columbia, 124 F. Supp. 2d 1, 5 (D.D.C. 2000)
(citing Kidane v. Northwest Airlines, Inc., 41 F. Supp. 2d 12,
17 (D.D.C. 1999))). This is not a correct statement of the law.
“We have made clear that a plaintiff makes out a prima facie
case of disparate-treatment discrimination by establishing that:
(1) she is a member of a protected class; (2) she suffered an
adverse employment action; and (3) the unfavorable action
gives rise to an inference of discrimination.” George v.
Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005) (quoting Stella v.
Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v.
Brody, 199 F.3d 446, 452 (D.C. Cir. 1999))) (internal quota-
tion marks omitted). A plaintiff may satisfy the third prong of
this test by “demonstrating that she was treated differently
from similarly situated employees who are not part of the
protected class,” id. (citing Holbrook v. Reno, 196 F.3d 255,
261 (D.C. Cir. 1999)), or, in the specific context of a dis-
charge claim, showing that she was not terminated for “the
two . . . common legitimate reasons for discharge: perfor-
mance below the employer’s legitimate expectations or the
elimination of the plaintiff’s position altogether,” id. Contrary
to the district court’s view, we have expressly rejected as
9
immaterial a requirement that the plaintiff be replaced by an
individual outside her protected class. Id. at 412-13; Stella,
284 F.3d at 146. The plaintiff need only show that the posi-
tion continues to exist and was filled—sufficient proof that the
position was not simply eliminated.
In the context of reverse discrimination claims, the prima
facie framework is tweaked once more. In the standard Title
VII case, that is, where the plaintiff is a member of a minority
group, an inference of discrimination arises when the em-
ployer merely carries out an adverse employment action, such
as nonpromotion or termination, against the plaintiff. Har-
ding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). But “there is
nothing inherently suspicious” about an employer’s decision
to promote a minority applicant instead of a white applicant,
id., or to fire a white employee. As a result, a majority-group
plaintiff alleging Title VII discrimination must show “addi-
tional background circumstances that support the suspicion
that the defendant is that unusual employer who discriminates
against the majority.” Id. (quoting Parker v. Balt. & Ohio
R.R., 652 F.2d 1012, 1017 (D.C. Cir. 1981)) (brackets and
internal quotation marks omitted). This “background circum-
stances” requirement modifies the first prong of the prima
facie framework; it “substitutes for the minority plaintiff’s
burden to show that he is a member of a racial minority.” Id.
It is “not designed to disadvantage the white plaintiff,” id., but
“means simply that in our society, where ‘reverse discrimina-
tion’ is the exception, white plaintiffs must show more than
the mere fact that they are white” before an adverse employ-
ment action against them will raise an inference of discrimina-
tion, id. at 154; see also Mills v. Healthcare Serv. Corp., 171
F.3d 450, 457 (7th Cir. 1999); Duffy v. Wolle, 123 F.3d 1026,
1036-37 (8th Cir. 1997); Reynolds v. Sch. Dist. No. 1, 69 F.3d
1523, 1534 (10th Cir. 1995); Murray v. Thistledown Racing
10
Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985). But see Iadimarco
v. Runyon, 190 F.3d 151, 160-61 (3d Cir. 1999) (rejecting this
requirement); Lucas v. Dole, 835 F.2d 532, 534 (4th Cir.
1987) (declining to decide whether to adopt this requirement).
Two general categories of evidence constitute “back-
ground circumstances.” The first is evidence indicating the
particular employer “has some reason or inclination to dis-
criminate invidiously against whites.” Harding, 9 F.3d at 153.
Within this category, we have found sufficient such evidence
as political pressure to promote a particular minority because
of his race, pressure to promote minorities in general, and
proposed affirmative action plans. See Bishopp v. District of
Columbia, 788 F.2d 781, 787 (D.C. Cir. 1986); Lanphear v.
Prokop, 703 F.2d 1311, 1315 (D.C. Cir. 1983).4 The second
category is evidence indicating that “there is something ‘fishy’
about the facts of the case at hand that raises an inference of
discrimination.” Harding, 9 F.3d at 153. Within this cate-
gory, we have found the following circumstances sufficient:
evidence that a plaintiff was given “little or no consideration”
for a promotion and that the supervisor never fully reviewed
the qualifications of the minority promotee, Lanphear, 703
F.2d at 1315; and evidence that a minority applicant was
promoted over four objectively better-qualified white appli-
cants “in an unprecedented fashion,” Bishopp, 788 F.2d at
786. A plaintiff may establish “background circumstances” by
4
In Parker, we noted that “a lawful affirmative action program”
would not necessarily “in itself constitute suspicious circumstances”
justifying an inference of discrimination. 652 F.2d at 1018 n.9.
Subsequently, however, in Bishopp and Lanphear, we acknowledged
that where an employer was in the process of drafting or adopting an
affirmative action plan, this contributed, in combination with other
factors, to the creation of sufficient “background circumstances.” See
Bishopp, 788 F.2d at 787; Lanphear, 703 F.2d at 1315.
11
proffering evidence from either of the two general categories;
evidence from both is not necessary. Harding, 9 F.3d at 153.
Additionally, such circumstances may arise from either the
employer’s general background or the background of the case
at hand. Id. In short, the burden for demonstrating “back-
ground circumstances” sufficient to sustain a prima facie case
of reverse discrimination is minimal, in keeping with our
belief that the requirement is not intended to be “an additional
hurdle for white plaintiffs,” id. at 154, and the general under-
standing that the plaintiff’s burden of establishing a prima
facie case of discrimination under the McDonnell Douglas
framework is “not onerous.” Burdine, 450 U.S. at 253.
The district court determined Mastro failed to establish
sufficient “background circumstances” to support a suspicion
that Pepco discriminates against white employees. Mastro,
398 F. Supp. 2d at 76. The court found Mastro leveled only
conclusory allegations of discrimination, for example, testify-
ing he had a “gut feeling” discrimination prompted his termi-
nation or merely asserting that his supervisors acted against
him in order to benefit two African-American employees,
Harsley and Bryant.5 Id. The district court also referred to a
1993 consent decree through which Pepco settled a race and
gender discrimination class action. Id. The consent decree,
which expired in 1998, required Pepco to pay $38 million into
a settlement fund and take “certain affirmative steps.” Defs.’
Suppl. Resp. to Pl.’s Req. for Admis. of Facts 1. These “facts
and unsupported allegations,” the district court held, estab-
lished “only a finding that [Mastro] was dismissed in a per-
functory manner for what appears to be an isolated incident of
apparent misconduct,” not “background circumstances” giving
5
After Mastro’s termination, Bryant was one of two individuals
who assumed the role of Acting Supervisor of Mastro’s team.
12
rise to an inference of discrimination. Mastro, 398 F. Supp.
2d at 76. We disagree.
To begin with, the district court accorded too little weight
to the 1993 consent decree. Were Pepco still legally obliged
to adhere to its terms, we would doubtless consider it proba-
tive evidence of “background circumstances,” just as we have
previously found proposed affirmative action plans satisfy the
standard. See Bishopp, 788 F.2d at 786-87; Lanphear, 703
F.2d at 1315; cf. Ineichen v. Ameritech, 410 F.3d 956, 960
(7th Cir. 2005) (noting that reverse discrimination “is not
surprising” when management is “under pressure” from, inter
alia, “a judicial decree”). Yet it is unreasonable to assume
that because the consent decree nominally expired in 1998,
Pepco immediately ended the “affirmative steps” it had estab-
lished pursuant to the decree’s terms, or that the decree’s
lingering effects were not still felt four years later when the
events giving rise to this litigation took place. Indeed, the
point of many consent decrees is to implement short-term
measures that precipitate a paradigm shift having long-term, if
not permanent, effects. Thus, we accord some significance to
the consent decree and the extent to which a reasonable jury
could believe it might encourage Pepco management to treat
minority employees in a preferential manner.
Record evidence suggesting reluctance by Pepco manage-
ment to impose discipline on African-American employees
bolsters this view. Mastro offered testimony, unchallenged by
Appellees, that one of the African-American employees he
supervised, Nelson Daniels, thrice violated company policy or
work procedures, costing Pepco thousands of dollars in repairs
as a result. In each instance, Mastro recommended to
Pancholi that Daniels be disciplined, but Pancholi refused to
do so; according to Mastro, Pancholi cited concerns about not
13
wanting to “stir up the pot” or “create controversy.” Another
time when Mastro sought discipline against an African-Ameri-
can employee, he claims he was specifically instructed not to
do anything about the situation “because [the employee] is
black.” Mastro also testified about a heated confrontation
with James Bryant, Mastro’s immediate subordinate, during
which Bryant approached him in a physically threatening
manner and had to be held back by another employee.6
Mastro claims that Pancholi refused to discipline Bryant upon
Mastro’s request, even though Bryant’s behavior manifestly
violated company policy. For his part, Pancholi testified that
he actually supported Mastro’s recommendation to discipline
Bryant, dropping the matter only upon Mastro’s demand
several days later. Despite this conflict in testimony, however,
we believe that by itself and in conjunction with the recently
expired consent decree, the evidence Mastro has presented is
sufficient for a reasonable jury to discern sufficient “back-
ground circumstances” to support a suspicion that Pepco is
“the unusual employer who discriminates against the major-
ity.” Harding, 9 F.3d at 153 (internal quotation marks omit-
ted). Given Mastro’s low evidentiary burden at this point in
6
Mastro’s description is livelier:
Q: “You said Bryant had to be subdued, who subdued
him?”
A: “Mike Tyson.”
Q: “Mike Tyson?”
A: “That is correct.”
Q: “How did Mike Tyson subdue him?”
A: “He held him back. There was no exchange of blows
or anything, it was more or less just being in my face. . . .
And Mike kind of held him back and said you could be fired
for this, get back, blah, blah, blah, that type of thing.”
Q: “He went back?”
A: “Well, Mike is much bigger than James Bryant. He
kind of carried him back.”
14
the analysis, he has demonstrated the first prong of his prima
facie case.
Mastro also satisfies the remaining elements of his prima
facie case. It is undisputed that he was discharged, thereby
satisfying the second prong. See Brown, 199 F.3d at 456-57.
He may satisfy the third and final prong by demonstrating
either that he was not performing below his employer’s legiti-
mate expectations and was replaced, or that he was treated
differently from similarly situated employees who are not part
of his protected class. Without addressing the second of these
alternatives, we conclude Mastro meets the first of them.
Appellees do not dispute that, prior to the Harsley incident,
Mastro had been an excellent employee with a clean disciplin-
ary record. They argue, however, that because Pepco believed
Mastro lied about his knowledge of Harsley’s incarceration,
and because lying to one’s employer necessarily constitutes
performance below legitimate expectations, Mastro therefore
performed below Pepco’s legitimate expectations. As the
district court concluded, this conclusion cannot logically
follow. See Mastro, 398 F. Supp. 2d at 75 n.6. The conduct
alleged by a Title VII plaintiff to be tainted by the employer’s
discrimination cannot serve as evidence that the employee was
performing below the employer’s legitimate expectations.
Otherwise, any employer could routinely evade Title VII’s
protections by accusing an employee of misconduct, firing
him, and claiming that the employee failed to demonstrate a
prima facie case of discriminatory termination because his
alleged misconduct constituted performance below legitimate
expectations. Appellees’ argument to this end is therefore
unavailing.
The record also shows that Mastro was replaced after his
termination. According to Pancholi, two individuals whom
15
Mastro had previously supervised, James Bryant and Loman
Dudley, served as Acting Supervisors following Mastro’s
discharge. Appellees suggest that because Mastro’s position
has not been permanently filled, it cannot be said that he has
been “replaced.” But whether a terminated Title VII plain-
tiff’s position has been filled on a temporary or permanent
basis should not affect the determination of whether the posi-
tion has been filled for purposes of the prima facie case. The
“replacement” requirement serves to weed out claims of
discriminatory termination where the plaintiff was discharged
simply because his job was being eliminated. So long as a
plaintiff shows that another individual replaced him, it is safe
to conclude the plaintiff’s job was not eliminated. This bur-
den is met even when an employer fills the position tempo-
rarily. Indeed, it is not unusual for employers to fill vacant
positions on an interim basis until a permanent replacement is
found. The very fact that Pepco deemed it necessary to ap-
point a temporary supervisor after Mastro’s termination illus-
trates the continuing need for someone in that position.7 We
therefore conclude that Mastro has demonstrated a prima facie
case of discriminatory termination.
7
Appellees also claim that Mastro has not demonstrated that any
of the employees who replaced him possessed qualifications equal to
or less than his own, which they contend our decision in Neuren v.
Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507 (D.C. Cir. 1995),
mandates. See id. at 1512. In Neuren, however, this element was a
dictum, an alternative requirement the court recited but did not
employ. None of our subsequent articulations of the prima facie
framework has embraced it, and for good reason: as noted, the
replacement element is merely a proxy, and requiring the plaintiff to
demonstrate that his replacement has equal or lesser skills goes
“beyond what is necessary to create an inference of discrimination.”
George, 407 F.3d at 413.
16
Mastro having satisfied his burden of establishing a prima
facie case, the burden shifts to Appellees to articulate a legiti-
mate, nondiscriminatory reason for firing Mastro. McDonnell
Douglas, 411 U.S. at 802. Appellees’ burden is merely one of
production, and here, they produce evidence “sufficient for the
trier of fact to conclude” Mastro was terminated because of
Pepco’s belief that he lied. Reeves, 530 U.S. at 142. Lying
constitutes a dischargeable offense, and thus Appellees have
satisfied the second prong of McDonnell Douglas.
Appellees having offered a legitimate, nondiscriminatory
explanation for terminating Mastro, “the presumption of
discrimination ‘simply drops out of the picture,’” Holcomb,
433 F.3d at 896 (quoting Burke v. Gould, 286 F.3d 513, 520
(D.C. Cir. 2002) (quoting St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 511 (1993)) (internal quotation mark omitted)), and
“the sole remaining issue [i]s discrimination vel non.” Reeves,
530 U.S. at 142 (quoting U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 714 (1983)) (internal quotation marks
omitted). “At this point, ‘to survive summary judgment the
plaintiff must show that a reasonable jury could conclude from
all of the evidence that the adverse employment decision was
made for a discriminatory reason.’” Holcomb, 433 F.3d at
896 (quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.
Cir. 2003)).
By ‘all of the evidence,’ we mean any combi-
nation of (1) evidence establishing the plain-
tiff’s prima facie case; (2) evidence the plaintiff
presents to attack the employer’s proffered
explanation for its actions; and (3) any further
evidence of discrimination that may be avail-
able to the plaintiff, such as independent evi-
17
dence of discriminatory statements or attitudes
on the part of the employer.
Id.; Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.
1998) (en banc).
For a number of reasons, we believe Mastro has offered
“ample evidence by which a reasonable jury could conclude”
that Pepco’s stated reasons for terminating him were pretext-
ual and that discrimination motivated its decision. George,
407 F.3d at 413. Record evidence suggests that Duarte’s
investigation, which was central to and culminated in Mas-
tro’s termination, was not just flawed but inexplicably unfair.
First, Duarte interviewed several individuals, but, curiously,
not Mastro himself. Admittedly, Mastro was given an oppor-
tunity to offer his version of events, but only at a later date
when management had already received the results of Duarte’s
investigation, putting Mastro on the defensive and depriving
him of the same opportunity that was given to Harsley, whom
Duarte did interview. For Duarte to have spoken to everyone
in the normal course of his investigation except the individual
at the center of the controversy—and the only
Caucasian—might well strike a jury as odd.8
Second, the investigation Duarte did conduct prior to
delivering his findings to management lacked the careful,
8
Duarte’s failure to conduct an evenhanded inquiry was not only
irregular but imprudent. The operative concepts at the center of the
dispute—“arrested” versus “incarcerated”—lend themselves to
transposition by laymen who only hear them in passing and are asked
to recall them after the fact. It may well be that the “contradictions”
that led to Mastro’s termination were the products not of mendacity
but of faulty presuppositions and interpretations, which Duarte could
have straightened out by questioning each person involved in the same
manner.
18
systematic assessments of credibility one would expect in an
inquiry on which an employee’s reputation and livelihood
depended. For example, while Duarte and Pepco management
appeared to rely heavily on James Bryant’s statements in
concluding that Mastro had been untruthful, a reasonable jury
could find Bryant’s credibility questionable. The record
reveals that Bryant and Mastro had a strained working rela-
tionship and that Bryant, as a second-in-command to Mastro,
stood to gain from disciplinary action against his boss. Mastro
testified that on “numerous occasions” Bryant displayed
“major insubordination” towards him. As noted, on one
especially tense occasion, according to Mastro, Bryant ac-
costed Mastro with “fists raised” and “had to be subdued” by
another employee. In his account of the incident, Bryant
testified that while he shouted and cursed at Mastro, he did not
physically confront him. Yet the episode was apparently
serious enough that Loman Dudley, a fellow employee and
union representative, heard about it despite being absent from
work at the time. Bryant also claimed that Mastro had in-
structed him on the morning of Tuesday, February 19th, to
mark Harsley down for vacation because Harsley was in jail;
the time sheets from that week, which Bryant kept, show
Harsley’s approved vacation. Bryant maintained that he was
so surprised by Mastro’s instruction that he immediately
called Dudley, the union representative, to make sure he
would not get in trouble for giving Harsley vacation when he
was in jail. But Dudley’s testimony flatly contradicts this
assertion. Dudley contends he was home recovering from
surgery and never heard from Bryant until “way after” the
incident. A jury might find it curious that neither Duarte nor
Pepco management bothered to assess the credibility of the
individual whose account proved most central to determining
Mastro’s fate.
19
Another puzzling shortcoming of Duarte’s investigation
is his admitted failure to ask any of the individuals he inter-
viewed whether they were friends with Harsley or if they had
talked to each other about the incident prior to speaking with
him, even though Duarte himself acknowledged that the
members of Mastro’s team were “a pretty close-knit group.”
Yet Duarte not only neglected to determine if collusion or
camaraderie may have shaped the stories upon which he based
his findings, he testified that such considerations were not an
“integral part” of his investigation. Additionally, Duarte’s
decisionmaking process lacked the appreciable reflection one
would expect for resolving such a serious matter. As he
described it: “I just interview people, see what they say, and in
the back of my mind determine whether I believe what they
are saying or not believe what they are saying.” In short, in
conducting an investigation that rested entirely on the question
of credibility, Duarte eschewed consideration of any indicia of
credibility. Viewed generously, Duarte seems to have based
his determination on the sheer weight of numbers; but suffi-
cient evidence exists for a jury to conclude, alternatively, that
discriminatory treatment may have permeated the investiga-
tion itself.
Aside from the troubling flaws in Duarte’s fact-gathering
investigation, Pepco management inexplicably turned a blind
eye to the issue of motive. Harsley had every reason to ob-
scure his whereabouts when requesting vacation, for, as Duar-
te testified, Harsley was on notice that incarceration could
have serious consequences for a probationary employee.9
Pancholi also testified that Harsley would have been fired had
he informed Mastro that he was unable to come to work due to
9
Following an earlier incident involving Harsley and an ex-
girlfriend, Duarte had informed Harsley that incarceration could lead
to discipline “up to and including” termination.
20
incarceration. Mastro, on the contrary, had no motive to be
untruthful regarding his knowledge of Harsley’s whereabouts.
The rules about the handling of such a situation seemed un-
clear and quite informal. Even after Mastro told Pancholi that
Harsley was incarcerated, he was advised to approve the
vacation and sort it out later. Pancholi himself admitted that
he could not “make any sense” of Mastro’s purported lack of
candor. Nevertheless, Pancholi steadfastly refused to account
for this factor, instead solely relying on the results of Duarte’s
one-sided investigation.10
Appellees believe that the mere fact that they conducted
an investigation and fired Mastro as a result should insulate
their actions from further scrutiny. But we believe Mastro has
presented sufficient evidence to “attack the employer’s prof-
fered explanation for its actions.” Holcomb, 433 F.3d at 897.
Mastro’s claims call into question whether Appellees’ investi-
gation was a reasonably objective assessment of the circum-
stances or, instead, an inquiry colored by racial discrimination.
Unlike our decision in Fischbach v. District of Columbia
Department of Corrections, 86 F.3d 1180 (D.C. Cir. 1996),
where we found there was “nothing the least bit fishy” about
the procedure an employer used in subjecting the plaintiff to
an adverse employment action, id. at 1184, we cannot say the
same here. Cf. Salazar, 401 F.3d at 509 (denying summary
judgment where “a jury could conclude that [an employer]
failed to provide a ‘fairly administered selection process’ and
that its claim to the contrary is pretextual”). Whether, for
example, Bryant’s statements, so critical to the decision to
terminate Mastro, are worthy of credibility, and whether the
investigation Duarte carried out was fair and impartial are
10
According to Pancholi, he “had no need to jump in and start
reasoning this motive versus that motive. Motive would have been
one thing, but the outcome of the investigation was another.”
21
genuine issues of material fact properly assigned to the jury.
“Although a jury may ultimately decide to credit the version
of the events described by [the employer] over that offered by
[the employee], this is not a basis upon which a court may rest
in granting a motion for summary judgment.” George, 407
F.3d at 413. Accordingly, we reverse the district court’s order
of summary judgment with respect to Mastro’s discrimination
claim.
B
We turn next to Mastro’s defamation claims. Mastro
alleges Appellees defamed him when they published the
termination memoranda outlining the reasons for his dis-
charge. He argues Appellees acted with malice in publishing
the documents because the statements they contained were the
products of discrimination. In addition, Mastro claims that
Appellees excessively published the memoranda; he maintains
that more than twenty Pepco employees were aware of his
termination and the circumstances behind it and contends one
of the managers privy to the personnel action must have
widely communicated the information. Because of the accu-
sations of lying that led to his termination, Mastro asserts, he
has been unable to secure another engineering job. The dis-
trict court concluded Mastro’s defamation claims are meritless
because he failed to produce any evidence defeating Appel-
lees’ privilege to publish the termination memoranda. We
agree.
“When deciding state-law claims under diversity or sup-
plemental jurisdiction, federal courts apply the choice-of-law
rules of the jurisdiction in which they sit.” Ideal Elec. Sec.
Co. v. Int’l Fidelity Ins. Co., 129 F.3d 143, 148 (D.C. Cir.
1997); see also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
22
487, 496 (1941). Because federal jurisdiction over Mastro’s
defamation claims is grounded in supplemental jurisdiction,
see 28 U.S.C. § 1367, we “look[] to the choice of law rules
prevailing in the District of Columbia,” which “employs the
governmental interest analysis test of the Restatement Second
of Conflict of Laws.” Weyrich v. New Republic, Inc., 235
F.3d 617, 626 (D.C. Cir. 2001) (citing Vaughan v. Nationwide
Mut. Ins. Co., 702 A.2d 198, 200 (D.C. 1997)) (italics omit-
ted). “Applying it to defamation actions, ‘the weight of au-
thority considers that the law to be applied is that of the place
where the plaintiff suffered injury by reason of his loss of
reputation.’” Id. (quoting Dowd v. Calabrese, 589 F. Supp.
1206, 1210 (D.D.C. 1984)) (brackets and ellipsis omitted).
Mastro is a resident of Maryland; however, if he suffered
reputational injury, it was in the District of Columbia, where
Pepco employed him and where, as Mastro contends, news of
his firing “spread like wildfire” among his colleagues. Ac-
cordingly, we examine his defamation claim under District of
Columbia law.
To make out a successful defamation action under Dis-
trict of Columbia law, a plaintiff must show
(1) that the defendant made a false and defama-
tory statement concerning the plaintiff; (2) that
the defendant published the statement without
privilege to a third party; (3) that the defen-
dant’s fault in publishing the statement
amounted to at least negligence; and (4) either
that the statement was actionable as a matter of
law irrespective of special harm or that its pub-
lication caused the plaintiff special harm.
23
Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C.
2001) (citations omitted). Like the district court, we conclude
Appellees are entitled to summary judgment because Mastro
has not satisfied the second prong of this test. He has not
adduced any evidence raising a genuine issue that Appellees
acted outside the scope of applicable privileges—here, the
common interest privilege—in publishing the termination
memoranda.
The common interest privilege protects otherwise defam-
atory statements made “(1) . . . in good faith, (2) on a subject
in which the party communicating has an interest, or in refer-
ence to which he has, or honestly believes he has, a duty to a
person having a corresponding interest or duty, (3) to a person
who has such a corresponding interest.” Moss v. Stockard,
580 A.2d 1011, 1024 (D.C. 1990). Two circumstances fore-
close asserting the privilege: first, excessive publication,
defined as “publication to those with no common interest in
the information communicated, or publication not reasonably
calculated to protect or further the interest,” id.; and, second,
publication with malice, which, within the context of the
common interest privilege, is “the equivalent of bad faith,” id.
at 1025. While the defendant bears the burden of proving the
elements of the common interest privilege, the burden of
defeating the privilege by showing excessive publication or
publication with malice lies with the plaintiff. See Alade v.
Borg-Warner Protective Servs. Corp., 28 F. Supp. 2d 655, 657
(D.D.C. 1998); Moss, 580 A.2d at 1024; cf. Smith v. District
of Columbia, 399 A.2d 213, 221 (D.C. 1979).
The record clearly demonstrates that Appellees’ publica-
tion of the termination memoranda was protected by the com-
mon interest privilege and was neither excessive nor imbued
with malice. Uncontradicted evidence shows the memoranda
24
were only shared with Mastro, certain members of Pepco’s
management, Pepco’s Employee Relations Department, two
clerical assistants for filing purposes, and the District of Co-
lumbia Department of Employment Services. These individu-
als and entities possess a legitimate interest in knowing about
the nature and outcome of personnel actions at Pepco, and,
therefore, their receipt of the memoranda falls within the
purview of the common interest privilege. Mastro does not
generally dispute this finding; he claims, however, that over
two dozen Pepco employees told him, upon his own informal
questioning, that they had heard about his termination and the
reasons behind it. According to Mastro, “simple deduction”
leads to the conclusion the information contained in the termi-
nation memoranda was somehow impermissibly communi-
cated to these individuals. But Mastro provides no evidence to
support either this assertion or the broader argument that
Pepco published the memoranda to anyone beyond those
persons authorized to view them under company policy.
Despite suggesting that up to twenty-six individuals received
the information because of excessive publication, he fails to
offer testimony or affidavits from any of them swearing to the
source of their knowledge.
In further support of his excessive publication argument,
Mastro claims Pancholi published information about his termi-
nation to William Sigafoose, a Pepco employee who was
neither Mastro’s supervisor nor involved in the disciplinary
proceedings against him. But uncontradicted evidence indi-
cates otherwise: Sigafoose testified he only heard about
Mastro’s discharge through word of mouth and without any
accompanying explanation of the reasons behind it. Further-
more, Sigafoose, a manager in Mastro’s division on the level
of Pancholi, was the first individual Mastro claims to have
approached when he learned of Harsley’s incarceration, since
25
Pancholi, whom Mastro would have otherwise notified, was
occupied in meetings. As a result, even assuming Sigafoose
received the termination memoranda, he had a legitimate
interest in the information. Thus, Mastro’s excessive publica-
tion argument does not defeat Appellees’ assertion of the
common interest privilege.
Mastro’s argument that Appellees lost the common inter-
est privilege by publishing the termination memoranda with
malice is also unavailing. District of Columbia law sets a high
standard for establishing malice sufficient to defeat the protec-
tions of the common interest privilege. Malice is defined as
“the doing of an act without just cause or excuse, with such a
conscious indifference or reckless disregard as to its results or
effects upon the rights or feelings of others as to constitute ill
will.” Moss, 580 A.2d at 1025 (quoting Mosrie v. Trussell,
467 A.2d 475, 477-78 (D.C. 1983)). But even a showing of ill
will does not “forfeit the privilege so long as the primary
purpose is to further the interest which is entitled to protec-
tion.” Columbia First Bank v. Ferguson, 665 A.2d 650, 656
(D.C. 1995) (quoting Mosrie, 467 A.2d at 477-78) (internal
quotation marks omitted). That is the case here. The primary
purpose behind management’s publication of the memoranda
was not to sully Mastro’s reputation, but to document the
events leading to Mastro’s dismissal, in conformance with
company policy and applicable law. Whatever impermissible
motives may have prompted Pepco management to terminate
Mastro, Mastro has presented no evidence suggesting that the
communication of that decision to a small group of appropriate
individuals was driven by anything more than the mundane
need for businesses and governments to keep track of person-
nel actions. Mastro has accordingly failed to satisfy the diffi-
cult burden of showing malice. See Novecon Ltd. v.
Bulgarian-American Enter. Fund, 190 F.3d 556, 567 (D.C.
26
Cir. 1999) (“[I]f the language of the communication and the
circumstances attending its publication . . . are as consistent
with the nonexistence of malice as with its existence, there is
no issue for the jury . . . .” (quoting Mosrie, 467 A.2d at 478
(quoting Nat’l Disabled Soldiers’ League, Inc. v. Haan, 4 F.2d
436, 441-42 (D.C. Cir. 1925)))).
Mastro has raised no triable issues of fact as to Appellees’
loss of the common interest privilege. Because neither exces-
sive publication nor publication with malice exists to defeat
the privilege in this case, Mastro has failed to demonstrate a
necessary element of defamation. We therefore affirm the
order of summary judgment for Appellees with respect to
Mastro’s defamation claims.
III
The district court properly granted summary judgment on
Mastro’s defamation claims, but erred in granting summary
judgment on his discrimination claim. Accordingly, the judg-
ment of the district court is affirmed in part and reversed in
part, and the case is remanded for further proceedings consis-
tent with this opinion.
So ordered.