UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

)
ANDY B. VINH, )
)
Plaintiff, )
)
v. ) Civil Case No. 15-cv-01525 (RCL)
' )
WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY, )
)
Defendant. )
)
)
MEMORANDUM OPINION

Plaintiff Andy B. Vinh brought this action against the Washington Metropolitan Area
Transit Authority (“WMATA”) alleging that the defendant discriminated against him based on his
race, gender, and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., when he was rehired by the defendant, as opposed to reinstated, after his
criminal conviction was overturned on appeal. Before the Court is defendant’s motion for
summary judgement on all claims. ECF No. 22. Upon consideration of the motion, the response
and reply thereto, the entire record of the case, and the relevant case law, the Court GRANTS the
defendant’s motion for summary judgment
I. BACKGROUNDl

Plaintiff Andy B. Vinh, who is of Asian origin and of Vietnamese national origin, began
working as a police officer for the Metro Transit Police Department (MTPD)_WMATA’s police

force_in 2008. On October 31, 2013, the plaintiff was convicted of second degree assault in

 

l All facts in this section are drawn from the Statement of Material Facts Not in Dispute, ECF. No. 22, and
the Opposing Statement of Genuine Material Facts in Dispute, ECF No. 24-1.

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Montgomery County, Maryland District Court. In response to the conviction, WMATA
terminated the plaintiff’ s employment on November 25, 2013. He appealed his conviction and in
January of 2014 the Montgomery County Circuit Court reversed his conviction and found him not
guilty. At that point, the plaintiff reapplied for a position as a police officer with WMATA and
was rehired, and not reinstated, on March 5, 2014.

At the time of his firing and rehiring, the plaintiff was a paying union member of the
Fratemal Order of the Police (“FOP”). On the plaintiffs behalf, FOP only filed a Step One
Grievance and failed to pursue any additional grievance procedures under the Collective
Bargaining Agreement (“CBA”), including arbitration

On September 18, 2015, the plaintiff filed a Complaint in the present action against
WMATA. He alleges three counts of discrimination under Title VII (race, national origin, and
gender based discrimination). The plaintiff’ s allegations center on the claim that WMATA should
have reinstated him, as opposed to rehiring him, following the reversal of his second degree assault
conviction.

II. LEGAL STANDARDS

A. Summary Judgement

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Courts must “view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in its favor.” Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 629
(D.C. Cir. 2010) (internal quotation marks omitted). To show that a dispute is “genuine” and
defeat summary judgment, the nonmoving party must present evidence “such that a reasonable

jury could return a verdict for the nomnoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Id. (internal citations omitted). Summary judgment is also appropriate
when, “aiier adequate time for discovery,” the nonmoving party “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial . . . since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).

B. Title VII-National Origin, Race, and Gender Discrimination

Federal employment discrimination is prohibited by Title VII of the Civil Rights Act of
1964, under which it is unlawful for an employer “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).

Title VII claims that rely on circumstantial evidence-as opposed to direct evidence of
discrimination-are analyzed under the burden-shifting framework found in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the employee “must carry the
initial burden under the statute of establishing a prima facie case of racial discrimination.” Ia’. at
802. In cases concerning disparate treatment based on national origin, race, or sex, a prima facie
case consists of a showing that “(1) [the plaintiff] 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.” Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (internal
quotation marks omitted).

A plaintist “burden of establishing a prima facie case of disparate treatment is not

onerous,” Texas Dep ’t of szy. Ajfairs v. Burdine, 450 U.S. 248, 253 (1981), and the requirement

of establishing a prima facie case “is ‘not intended to be an inflexible rule.”’ Young v. United
Parcel Serv., Inc., 135 S. Ct. 1338, 1353 (2015). Thus, “an individual plaintiff may establish a
prima facie case by ‘showing actions taken by the employer from which one can infer, if such
actions remain unexplained, that it is more likely than not that such actions were based on a
discriminatory criterion illegal under’ Title VII.” Id.

If the employee establishes a prima facie case of discrimination, the burden “must shift to
the employer to articulate some legitimate, nondiscriminatory reason for the” adverse action.
McDonnell Douglas, 411 U.S. at 802. The employer “must clearly set forth, through the
introduction of admissible evidence, the reasons for the [the action]” so as to “raise[] a genuine
issue of fact as to whether it discriminated against the plaintiff” Burdine, 450 U.S. at 254-55.

If the employer succeeds in offering legitimate, nondiscriminatory reasons for the action,
the “plaintiff must then have an opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.” Id. at 252. The plaintiff may demonstrate pretext “either directly by persuading
the court that a discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Id. at 255. Either way, the
plaintiff must show “both that the reason was false, and that discrimination was the real reason.”
St. Mary ’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Evidence of pretext may include “the
employer’s better treatment of similarly situated employees outside the plaintiffs protected group,
its inconsistent or dishonest explanations, its deviation from established procedures or criteria, or
the employer’s pattern of poor treatment of other employees in the same protected group as the
plaintiff, or other relevant evidence that a jury could reasonably conclude evinces an illicit motive.”

Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015).

In the context of a summary judgment motion where the defendant has offered a legitimate,
non-discriminatory reason for the challenged decision the “question whether the employee actually
made out a prima facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the
picture.”’ Brady v. Oj]ice of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). At that stage,
“the district court must resolve one central question: Has the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was
not the actual reason and that the employer intentionally discriminated against the employee on
the basis of race, color, religion, sex, or national origin?” Id. at 494.

III. ANALYSIS

A. The Defendant Has Offered a Legitimate, Non-Discriminatory Reason for
Rehiring, As Opposed to Reinstating, the Plaintiff

The defendant put forth evidence that it rehired, as opposed to reinstated, the plaintiff
following his conviction being overturned based on its understanding of the CBA agreement
between WMATA and FOP. Chief of Police Ronald Pavlik avers that he understood Article Five
of the CBA to require the plaintiffs seniority be terminated when he was fired for just cause on
November 25, 2013, following his conviction on second degree assault.2 ECF No. 22-2, 11 11. He
subsequently decided to rehire the plaintiff following the reversal of his conviction and the
expungement of his record. In his affidavit, Chief Pavlik states that he read Section Five of Article

Five of the CBA to require that plaintiffs seniority start from the date of reemployment3 ECF

 

2 Section Three of Article Five of the CBA provides, “An employee’s seniority shall be terminated or the
following reasons: (a) Resignation, voluntarily quit, discharge for just cause or retirement; or (b) unauthorized absence
for three (3) consecutive work days [...].” ECF No. 22-2, pg. 15.

3 Section Five of Article Five of the CBA provides, “Upon the reemployment of any employee, previously
separated from the Department in good standing, the employee’s starting salary, at the discretion of the Chief, may be
established at the step the employee held at the time of the employee’s separation. However, in accordance with Article
5, Section l, of this Agreement, employee’s seniority date shall be the date of the employee’s reemployment.” ECF
No. 22-2, pg. 16.

No. 22-2, 11 l4. In other words, Chief Pavlik believed that the CBA explicitly disallowed him from
reinstating the plaintiff and providing him with his previous level of seniority.

Plaintiff contends that WMATA’s reasoning is “conclusory” and “bare bones.” ECF No.
24-2, pg. 8. Plaintiff further argues that “there is no provision [in the CBA] stating that rehiring is
the status quo under the CBA.” Id. The Court finds these arguments unavailing Chief Pavlik’s
reading of the CBA is reasonable and would offer a legitimate basis for his decision. Section Five
of Article Five clearly indicates that where an employee is reemployed, the “employee’s seniority
date shall be the date of the employee’s reemployment.” ECF No. 22-2, pg. 16. Even if one could
argue for a different reading of the CBA, the Court recognizes that “whether an employer's
proffered non-discriminatory reason is ‘legitimate’ is a relatively lenient standard.” Tabron v.
Johnson, 21 F.Supp.3d 84, 87 (D.D.C. 2014) (citing Fischbach v. D.C. Dep't of Corrections, 86
F.3d 1180, 1183 (D.C. Cir. 1996). Moreover, the issue is not “the correctness or desirability of
[the] reasons offered [but] whether the employer honestly believes in the reasons it offers.”
Fischbach, 86 F.3d at 1183. Here, the defendant produced evidence that the individual responsible
for the decision_ChiefPavlik-was motivated by a reasonable reading of the CBA. Accordingly,
the-Court finds that the defendant offered a legitimate, non-discriminatory reason for the decision.

B. The Plaintiff Has Failed To Provide Evidence That Defendant’s Proffered
Reason for Rehiring Was Pretext For Discrimination

Since the Court finds that the defendant proffered a legitimate, non-discriminatory reason
for its action, the burden shifts to the plaintiff to establish that WMATA’ s reason was in fact pretext
for discrimination The plaintiff asserts three arguments in an attempt to carry his burden and the
Court will address each one in turn.

First, the plaintiff points to the multiple interactions he had with FOP and WMATA

officials following his conviction. He contends that “the assurances from both the union and

WMATA officials that Plaintiff would be reinstated sheds doubt on the credibility of the statement
that rehiring and not reinstatement is the standard procedure.” ECF No. 24-2, pg. 10. Specifically,
the plaintiff highlights that union representatives assured him that they would fight for his
reinstatement and that Captain Gaddis, an MTPD official, informed him that if he successfully
appealed his conviction he would be reinstated, According to the plaintiff “[t]he fact that the union
and WMATA officials were so quick to assure Plaintiff that an overturned conviction would result
in his reinstatement contravenes the Defendant’s argument that the CBA and WMATA policy
requires a rehire and not reinstatemen .” Id.

Plaintiffs second argument follows along the same lines. He alleges that from March 2014
to October 2014, WMATA delayed his full reinstatement According to WMATA officials, while
he was provisionally rehired in March, he could not be fully reinstated until after he acquired his
Maryland Blue Card.4 Following months of delay, the plaintiff claims that he himself inquired
into the status of his Blue Card and he learned that it was intact. Plaintiff contends that Captain
Greg Hanna, an MTPD official, held up the process and that “[t]hese are not the actions of an
organization that is merely adhering to a collective bargaining agreement These actions were
taken to discriminate against the Plaintiff based upon his race.” ECF No. 24-2, pg. 11.

Even accepting all of the plaintiffs factual assertions as true, there is still no evidence that
Chief Pavlik’s offered reason for this action was pretext for discrimination Notably, Chief Pavlik
is absent from the plaintiffs account. Plaintiff does not allege that he offered assurances of
reinstatement or that he took part in delaying the process. Nor does plaintiff contest the fact that

Chief Pavlik was the official ultimately responsible for terminating and rehiring the plaintiff (even

 

4 MTPD police officers are required to have a valid Maryland Police Corrections and Training Commission

Certitication and Training Standards Compliance Card, know more commonly as a “Blue Card”. The plaintiff lost
his Blue Card following his conviction and it could only be reacquired following the expungement of his record. ECF
No. 22-2,1|1] 6, 15, 16.

if other officials at WMATA would have been involved in the process). Therefore, neither of the
arguments above call into question his decision making nor undercut that he legitimately believed
that the CBA required rehiring as opposed to reinstating

The crux of the plaintiffs third argument is that WMATA has a history of treating Asian-
Americans worse than employees of other racial backgrounds In support of that claim, plaintiff
presents evidence of a number of similarly situated employees who were treated more favorably.
Plaintiff also presents evidence of employees treated more favorably in order to support his claim
that he was discriminated on the basis of his gender and his national origin In total, plaintiff
presents evidence of five comparators: T.H., S.B., M.S., I.N., and N.M. See ECF No. 24-2, pgs.
11-15.

Specifically, the plaintiff alleges that T.H., S.B., M.S., and I.N._all African-American
individuals_-were treated more favorably than him due to his race, M.S. and S.B. were both
reinstated despite having been fired for malfeasance uncovered in internal investigations T.H._
who was involved in an act of malicious vandalism-remained an officer and was allowed to carry
a firearm, despite her Blue Card having been revoked. And I.N._who was arrested on charges of
trespassing into an area where he had been previously arrested for soliciting sex from a prostitute-
were never even terminated in the first place, only suspended. Id., pgs. 4-5. Next, plaintiff
contends that T.H., an African-American female, was treated more favorably due to gender. Id.,
pg. 14. And finally, N.M._who is of Filipino national origin_was treated more favorably than
plaintiff_who is of Vietnamese national origin_as evidence by the fact that he was reinstated

following his terminations Id., pg. 15.

 

5 The Court notes an apparent contradiction in plaintiff citing N.M. as a comparator in this context. In alleging

that WMATA has a history of mistreating Asian-Americans on the basis of racial discrimination, the plaintiff raised
the example of N.M., an Asian-American, who was terminated for his conduct and went through a lengthy process for
reinstatement Plaintiff argued that he was treated worse than T.H. and I.N., who were both African-American. Now,

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The defendant responds by noting that three of the five comparators_M.S., S.B., and
N.M._- arc not similarly situated to the plaintiff as a matter of law because they were only
reinstated pursuant to an arbitration agreement Unlike the plaintiff, those three officers pursued
their labor remedies under the CBA and an arbitrator ultimately ordered WMATA to reinstate
them to their former positions and seniority. See ECF No. 22-2, 1111 17, 18. The plaintiff did not
pursue arbitration His union representatives failed to move past Step One of the grievance process
(arbitration is only invoked after Step Four). Ia’., il 21.

The Court finds this argument persuasive and agrees that as a matter of law, those three
officers cannot be considered mutually exclusive. In order for the plaintiff to be considered
similarly situated to the other officers, he is “required to demonstrate that all of the relevant aspects
of [his] employment situation were ‘nearly identical’ to those of the [the other officers].” Neuren
v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995) (internal quotation
marks and citation omitted). That the plaintiff did not pursue arbitration constitutes a major
difference Chief Pavlik attests that under his watch no officers, who were previously terrninated,
were reinstated unless he was ordered to do so by an arbitrator. Plaintiff argues that the “union let
[his] case fall by the wayside.” ECF No. 24-2, pg. 13. But even if true, that has no bearing on this
analysis. The plaintiffs claims allege that WMATA officials treated him disparater nom other
officers by not reinstating him, not that his union representatives treated him poorly. It is also
important to note another difference between the plaintiff and M.S., S.B., and N.M. Those three
officers were terminated based on violations of internal policies not because they were criminally

convicted, as the plaintiff was in this case,

 

plaintiff cites N.M. as a similarly situated employee treated more favorable on the basis of national origin Plaintiff
appears to be arguing both that N.M. was discriminated against due to his race and yet was treated more favorably
than plaintiff based on his national origin

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Next, the defendant contends that I.N. is not a proper comparator to the plaintiff because
he was not terminated for his conduct. The plaintiffs claims are about reinstatement, not
termination He explicitly acknowledges that he does not contest WMATA’s decision to terminate
him. See ECF No. 22-4, pg. 2. Therefore, the actions by the defendant pertaining to an individual
who was not terminated are not relevant to the present case, As it relates to I.N., the defendant did
not need to face the decision of whether to reinstate or rehire, which is precisely the decision that
is under scrutiny here. As a matter of law, even if the Court accepts the plaintiffs testimony
related to I.N. as true,6 it does not do any work in proving that the defendant’s stated reason for its
action was pretext for discrimination

Finally, the Court agrees with the defendant that T.H. is also not a similarly situated
employee for the purpose of proving that defendant’s legitimate, non-discriminatory reason was
pretext Unlike the three officers discussed above, T.H. was reinstated without the benefit of an
arbitration award. However, a major difference highlights that T.H.’s circumstances were not
“nearly identical” to the plaintiffs circumstances Neuren, 43 F.3d at 1514. T.H. was reinstated
in 2007, roughly six years before the relevant facts in this case, and most importantly the decision
to reinstate T.H. was made by then-Acting Chief David Shaw. Chief Pavlik avers that he was not
privy to that decision and that he believes it was done contrary to the CBA. See_ ECF No. 22-2, 11
19. In fact, it is the only case in the last twenty years where an officer was reinstated not as a result
of an arbitration award. ld. Since the plaintiff bears the burden of proving that Chief Pavlik’s
stated reason for rehiring was pretext, it is highly relevant that the comparatively more favorable

treatment was under a different decision maker. See Mitchell v. Tolea'o Hosp., 964 F.2d 577, 583

 

6 The defendant argues that the Court should not even accept the evidence because it was presented by the

plaintiff on the basis of a newspaper article, which is hearsay evidence, The Court need not reach this issue for the
reason discussed abovel

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(6th Cir. 1992) (“[T]o be deemed “similarly-situated”, the individuals with whom the plaintiff
seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to
the same standards and have engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer's treatment of them
for it.”); see also Phillips v. Holladay Property Serv., 937 F.Supp. 32, 37 (D.D.C. 1996) (same).

The plaintiff alleges that since a reemployment decision must “go through WMATA’s HR
Department and ultimately be approved by the General Manager of WMATA” defendant’s
argument that the “comparators are not similar to Plaintiff because there were different decision
makers does not hold watcr.” ECF No. 24-3, pgs. 12-13. The Court disagrees While other
officials are involved in these personnel decisions, the evidence indicates that Chief Pavlik was
the primary decision maker. In his affidavit, Chief Pavlik asserts that he made the decision to
terminate and subsequently rehire the plaintiff The plaintiff does not suggest that the decision to
rehire could have been made independent of Chief Pavlik’s viewpoint But even if the Court did
find T.H. to be similarly situated to the plaintiff that data point alone is not sufficient to carry the
plaintiffs burden of demonstrating pretext One incident in a twenty year period in which an
officer was reinstated without an arbitration award does not prove much. And the Court is mindful
of the principal that courts should “decline to second-guess an employer's personnel decision
absent demonstrably discriminatory motive.” Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir.
1982).

In sum, the Court is not persuaded that any of the five comparators presented by the
plaintiff are similarly situated such that they can prove that Chief Pavlik’s offered reason for his
actions was pretextual. In his sworn testimony, Chief Pavlik conveyed his belief that the language

of the CBA required him to rehire, as oppose to reinstate, the plaintiff The Court finds that to be

ll

a legitimate, non-discriminatory reason. And none of the evidence presented by the plaintiff
proves “both that [his] reason was false, and that discrimination was the real reason.” St. Mary ’s
Honor Ctr., 509 U.S. at 515. The plaintiff has failed to meet his burden and the Court finds that
there is no genuine dispute as to any material fact and that the defendant is entitled to judgment as
a matter of law.
IV. CONCLUSION

F or the reasons stated herein the Court GRANTS the defendant’s motion for summary
judgment, ECF No. 22. The case is hereby DISMISSED. A separate Order accompanies this

Memorandum Opinion.

lt is SO ORDERED.

Dare: March l 2013 €;tcl.c- w

Rche"C. Lambe'nh
United States District Judge

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