Mastro, Brian A. v. Potomac Elec Power

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.