McBride v. Washington Metropolitan Area Transit Authority

Filing 36

MEMORANDUM OPINION AND ORDER granting 28 Motion for Summary Judgment; JUDGMENT in favor of Washington Metropolitan Area Transit Authority; directing the Clerk to close this case. Signed by Judge Paul W. Grimm on 8/8/2019. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
TERRANCE MCBRIDE,
Plaintiff,
v.

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WASHINGTON METROPOLITAN AREA *
TRANSIT AUTHORITY,
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Defendant.
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Case No.: PWG-17-3433

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MEMORANDUM OPINION AND ORDER
Terrance McBride, an African-American man, worked for Washington Metropolitan Area
Transit Authority (“WMATA”) as a plumber until WMATA terminated his employment “for
falsifying reports and for his unauthorized absence from the worksite.” Def.’s Stmt. of Facts ¶¶ 1,
11, ECF No. 28-2; Pl.’s Resp. to Stmt. ¶¶ 1, 11, ECF No. 29-1. His termination followed an
investigation of him, two African-American co-workers, and two Caucasian co-workers “for
potential misconduct.” Pl.’s Opp’n 4, ECF No. 29; Def.’s Reply 4 n.1, 5, ECF No. 33. He views
his termination as discriminatory because WMATA terminated the employment of the three
African Americans but not the Caucasians. Am. Compl. ¶ 33, ECF No. 10. He filed suit, alleging
race discrimination based on his termination, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Compl., ECF No. 1. Now pending is the Motion

for Summary Judgment, ECF No. 28, that WMATA filed.1 Because Mr. McBride cannot prevail
on his claim as a matter of law, I will grant Defendant’s motion.
Factual Background2
Terrance McBride, an African American, worked for WMATA as a plumber, beginning in
2003. Def.’s Stmt. of Facts ¶ 1; Pl.’s Opp’n 4; Def.’s Resp. to Requests for Admissions 1, ECF
No. 29-4. WMATA assigned McBride, along with Ronald Bellamy and Tyrone Gibson, both of
whom are African American, and David Eichen and Thomas McCaskill, both of whom are
Caucasian, to work the night shift in 2015. Pl.’s Opp’n 4; Defs.’ Reply 4 n.1 &5; Def.’s Stmt. of
Facts ¶¶ 5, 19; Def.’s Resp. to Requests for Admissions 1, 7–10. They worked as a crew
“performing maintenance checks on fire suppression systems in locations operated by Defendant
and repairing those systems as necessary.” Am. Compl. ¶ 21.
Andre Jordan, the Assistant Superintendent of McBride’s department at WMATA, stated
that he had “observed employees in Plaintiff’s crew at the end of their shift coming in late, with
red eyes, and disheveled clothes.” Def.’s Stmt. of Facts ¶ 3; Pl.’s Resp. to Stmt. ¶ 3. As a result,
WMATA investigated all five employees “for potential misconduct.” Pl.’s Opp’n 4; Def.’s Reply
5; see also Def.’s Reply 4 n.1 (noting that these “evening shift plumbers were under investigation
by their supervisors for sleeping on the job”).
During the evening shift beginning May 17, 2015, the crew had been assigned to work at
WMATA’s Southern Avenue Station. Pl.’s Opp’n 4; Defs.’ Reply 4 n.1 &5; Def.’s Stmt. of Facts

1

The parties fully briefed the motion. ECF Nos. 28-1, 29, 33. A hearing is not necessary. See
Loc. R. 105.6.
2

To decide WMATA’s Motion for Summary Judgment, I consider the facts in the light most
favorable to Mr. McBride as the non-moving party, drawing all justifiable inferences in his favor.
Ricci v. DeStefano, 557 U.S. 557, 585–86 (2009).

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¶¶ 5, 19. All five crew members completed their work and left the worksite at the same time early
in the morning on May 18, 2015, before their shifts ended. McBride Dep. 76:10–19, 77:2–3, ECF
No. 29-2. After that, WMATA took disciplinary measures and terminated the employment of all
three African Americans but not the Caucasians, leading McBride to believe that the termination
was discriminatory. Am. Compl. ¶ 33.
I will discuss the facts concerning the individuals’ actions and repercussions in the
discussion below, in the context of the elements that McBride must prove to prevail on his claim
for racial discrimination.
Standard of Review
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other
materials,” 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), (c)(1)(A); see Baldwin v. City of Greensboro,
714 F.3d 828, 833 (4th Cir. 2013). “A disputed fact presents a genuine issue ‘if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.’” Cole v. Prince
George’s Cty., 798 F. Supp. 2d 739, 742 (D. Md. 2011) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). If the party seeking summary judgment demonstrates that there is no
evidence to support the nonmoving party’s case, the burden shifts to the nonmoving party to
identify evidence that shows that a genuine dispute exists as to material facts. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 & n.10 (1986).

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Discussion
Title VII makes it “an unlawful employment practice 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 . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may
prove discrimination using direct evidence or under the McDonnell Douglas3 burden-shifting
approach. Ruffin v. Lockheed Martin Corp., 126 F. Supp. 3d 521, 526–27 (D. Md. 2015), aff’d as
modified, No. 15-2067, 2016 WL 4750626 (4th Cir. Sept. 13, 2016); see Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004). “Under either avenue of proof, the focus
is on whether a reasonable juror could conclude that illegal discrimination was a motivating factor
in the employment decision.” U.S. Equal Employment Opportunity Comm’n v. Dimensions
Healthcare Sys., No. PX-15-2342, 2016 WL 4593470, at *3 (D. Md. Sept. 2, 2016) (citing Sawicki
v. Morgan State Univ., No. WMN-03-1600, 2005 WL 5351448, at *6 (D. Md. Aug. 2, 2005), aff’d,
170 F. App’x 271 (4th Cir. 2006)).
McBride does not contend that there is direct evidence of discrimination. Pl.’s Opp’n 8.
Accordingly, under the McDonnell Douglas burden-shifting framework, he must first make out a
prima facie case of race discrimination. Wright v. Sw. Airlines, 319 F. App’x 232, 233 (4th Cir.
2009). If he does so, the burden shifts to the employer, which must “proffer evidence of a
legitimate, non-discriminatory reason for the adverse employment action.” Id. The burden then
shifts back to McBride “to prove by a preponderance of the evidence that the proffered reasons
were pretextual.” Id. at 233.

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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The elements of a prima facie case of race discrimination under Title VII are “(1)
membership in a protected class; (2) satisfactory job performance; (3) an adverse employment
action; and (4) less favorable treatment than similarly situated employees outside the protected
class.” Linton v. Johns Hopkins Univ. Applied Physics Lab., LLC, No. JKB-10-276, 2011 WL
4549177, at *5 (D. Md. Sept. 28, 2011) (citing White v. BFI Waste Servs., 375 F.3d 288, 295 (4th
Cir. 2004)); see also Coleman, 626 F.3d at 190. A plaintiff is “not required as a matter of law to
point to a similarly situated . . . comparator [outside the protected class] in order to succeed on a
race discrimination claim.” Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir.
2003) (noting that in Dennis v. Columbia Colleton Med. Ctr. Inc., 290 F. 3d 639, 648–49 n.4 (4th
Cir. 2002), the Fourth Circuit held that a “plaintiff need not prove that she was better qualified
than a successful applicant if other circumstantial evidence suggests discrimination”); see also
Mabry v. Capital One, N.A., No. 13-2059-AW, 2013 WL 6410983, at *2 (D. Md. Dec. 6, 2013)
(noting that comparison to similarly situated employees “is the general rule” and not a “categorical
requirement”). Here, however, McBride has chosen to base his claim on the fact that he and two
other African-American employees were fired when two Caucasian employees were not, under
circumstances that McBride contends are similar. Am. Compl. ¶ 33; see also Pl.’s Opp’n 5–6 (“As
a result of the similarities in position and conduct, specifically leaving the worksite without
authorization, Mr. Eichen and Mr. McCaskill are proper comparators for Mr. McBride and they
both should have been investigated for misconduct by Defendant as Mr. McBride was.”). And,
WMATA focuses its challenge on the fourth element, insisting that “Plaintiff’s prima facie case
fails because there is no proper comparator.” Def.’s Reply 4. Thus, the issue is whether either
Eichen and McCaskill, who are Caucasian, can serve as a “similarly situated employee.” See
Linton, 2011 WL 4549177, at *5.

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“[T]he purpose of the similarly situated requirement is to eliminate confounding variables,
such as differing roles, performance histories, or decision-making personnel” and thereby “isolate
the critical independent variable: complaints about discrimination.” Humphries v. CBOCS W.,
Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008); Bell v. Univ. of Md. Coll. Park
Campus Facilities Mgmt., No. PX-17-1655, 2018 WL 3008325, at *8 (D. Md. June 14, 2018)
(quoting Humphries).

Therefore, “[c]omparators must be ‘similar in all relevant respects,’

including being subject to the same supervisors and performance standards, and having ‘engaged
in the same conduct without [meaningful] differentiating or mitigating circumstances.’” Caban v.
MET Labs., Inc., No. JKB-17-1872, 2019 WL 2146915, at *10 (D. Md. May 16, 2019) (quoting
Haywood v. Locke, Civ. No. 09-1604, 387 F. App’x 355, 359 (4th Cir. 2010)). Thus, I must
consider Eichen and McCaskill’s disciplinary histories and their actions early in the morning on
May 18, 2015, in comparison to McBride’s, to determine whether they are similarly situated.
Eichen and McCaskill were on the same crew as McBride, worked with him on the evening
shift that began May 17, 2015, and left the worksite when he did. With that, however, their
similarities end.
Mr. McBride
Five sources provide five distinct accounts of Mr. McBride’s whereabouts and the timing
of his return to the Carmen E. Turner Maintenance and Training Facility in Landover, Maryland
(“CTF”) on the early morning of May 18, 2015: video surveillance, two employment records that
McBride completed on May 18, 2015, a grievance that McBride wrote on July 1, 2015, and
McBride’s deposition testimony on May 1, 2018. The two records McBride completed that night
are a daily activity report and a vehicle trip log. A daily activity report is a report, completed by

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the employee, that “describes the employee’s activity for their work shift,” Jordan Dep. 18:1–2,
18:22–19:1. The vehicle trip log, like the daily activity report, is completed by the employee. Id.
at 18:16–21. “It’s a log that’s used to document [the employee’s] time, where [he] arrive[s],
multiple stations—like, if [he] go[es] to multiple stations, [he is] supposed to write down the times
that [he] get[s] there and the location.” Id. at 18:8–12.
The video surveillance shows that McBride returned to CTF at 12:45 a.m. on May 18,
2015. Jordan Decl. ¶ 11. And, at approximately 3:30 a.m. that morning (which was three hours
before McBride’s shift ended, McBride Decl. ¶ 2, ECF No. 29-7), “the vehicle assigned to Mr.
McBride was observed in the parking lot at [CTF].” Jordan Decl. ¶ 7. McBride was not in his
assigned vehicle when it was discovered. Id. ¶ 10. WMATA retrieved the trip log from the vehicle
at that time. Def.’s Stmt. of Facts ¶ 7; Pl.’s Resp. to Stmt. ¶ 7.
The trip log stated that McBride remained at the Southern Avenue Station location until
6:30 a.m., Def.’s Stmt. of Facts ¶ 7; Pl.’s Resp. to Stmt. ¶ 7, which matched neither the surveillance
video (placing McBride at CTF at 12:45 a.m.) nor the location of the vehicle at 3:30 a.m. when it
was discovered (CTF). The trip log also did not match McBride’s daily activity report, in which
he claimed that he finished working at the Southern Avenue Station at 2:30 a.m., earlier than
reported in the trip log (6:30 a.m.) but later than the video surveillance showed (12:45 a.m.). Def.’s
Stmt. of Facts ¶ 8; Pl.’s Resp. to Def.’s Stmt. of Facts ¶ 8.
Thus, the employment records contradict the video surveillance—and each other. McBride
does not try to argue that a reasonable jury should accept his account of the events over the video
surveillance, as indeed he cannot. See Scott v. Harris, 550 U.S. 372, 380–81 (2007) (noting that,
“[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the

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record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment,” and therefore, when the record contains
video footage that is not open to more than one interpretation and contradicts the non-movant’s
assertions, the Court “view[s] the facts in the light depicted by the videotape”); Glascoe v. Sowers,
No. ELH–11–2228, 2013 WL 5330503, at *5 (D. Md. Sept. 20, 2013) (observing that, when
videotapes “clearly depict the events at issue, they will prevail over contrary evidence submitted
by either side”). Rather, he attempts to explain the discrepancies.
According to McBride, “the trip log in question was not finalized at the time that it was
taken.” Pl.’s Resp. to Stmt. ¶ 7. He provides a Declaration to support his position that the trip log
was not false, but merely unfinished, and that he informed his supervisors that he was not planning
to turn it in without revising it:
6. I customarily completed my vehicle trip log at the beginning of my shift based
upon my estimation of where I would be driving during my shift.
7. If I ultimately was incorrect in my initial estimate, I simply corrected the trip log
to accurately represent what actually happened during my shift before leaving work
at the end of my shift.
8. During the night shift which began on May 17, 2015, I was employing this
method of completing my paperwork, as I routinely did. As a result, I had
tentatively filled in my vehicle trip log with my estimation of how my shift would
go.
9. I explained this to my supervisors when questioned during my shift on May 17,
2015 and requested that I be allowed to complete my vehicle trip log with the
correct information but was denied.
McBride Decl., ECF No. 29-7. Setting aside the self-serving nature of this Declaration, I note that
it explains only the inaccurate time listed in the trip log; it does not explain why McBride’s daily
activity report stated that he did not complete his work until 2:30 a.m., when the video surveillance
showed him returning to CTF at 12:45 a.m.

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McBride also attempted to account for his time between 12:45 a.m. and when his
supervisors located him after 3:30 a.m. First, in his July 1, 2015 grievance, in which he asserted
that WMATA wrongfully terminated his employment, he stated that he had gone to check on a gas
leak in WMATA’s Building 2 and “saw someone that [he] knew and started talking with them.”
McBride Dep. Ex. 27, ECF No. 29-2, at 115. Then, McBride testified that, after he completed his
work, he returned to CTF and then “g[ot] in the truck with [Bellamy] . . . to go to Checkers and
get [himself] a milkshake.” McBride Dep. 77:9–20. He explained:
And at the time, Checkers was closed I believe. And on the way back, he was going
to drop me off at the yard.
And I decided I was going to check on that gas leak that’s at the building directly
across the street, like I wrote in my notes. And I never made it in the building,
which I explained to [my supervisors] because I was standing outside of it talking
[with] . . . a guy from the neighborhood that I hadn’t seen in a long time.
Id. at 77:20–78:8.
He insists that these statements are not contradictory: First he went to Checkers, and then
he went to check on the gas leak in Building 2 but ended up in conversation outside the building.
See id.; Pl.’s Resp. to Stmt. ¶¶ 12–14. Taking the deposition testimony and the grievance in the
light most favorable to McBride, they can be read to be consistent with each other, telling the story
that Plaintiff suggests. But, they are inconsistent with McBride’s trip log and daily activity report,
which stated that he was at the Southern Avenue Station—not in front of Building 2—until 2:30
or 3:30 a.m. Further, they do not eliminate the contradiction between the daily activity report and
the trip log, or the two reports and the video surveillance. As noted, the Court cannot accept any
of McBride’s versions of events over the video surveillance. See Scott, 550 U.S. at 380–81.
Neither could a reasonable jury accept his smorgasbord of conflicting explanations in the face of
that video. See Loney v. Miles, 213 F.3d 631, 2000 WL 530319, at *3 (4th Cir. 2000) (Table)

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(concluding that, where witness’s “deposition thoroughly contradict[ed] his earlier affidavits, he
[did] not create an issue of material fact” because the court “may disregard an affidavit that is
inherently inconsistent with deposition testimony” (citing Rohrbough v. Wyeth Labs., Inc., 916
F.2d 970, 975-76 (4th Cir. 1990)); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)
(“A genuine issue of material fact is not created where the only issue of fact is to determine which
of the two conflicting versions of the plaintiff's testimony is correct.”).
Moreover, what McBride’s grievance and deposition testimony do establish is that
McBride spent part of the night going to Checkers and then having a personal conversation outside
Building 2. Notably, Jordan testified that the penalty for being absent without authorization
“[d]epend[s] on the egregiousness of it,” and he agreed that “if an employee is absent from the
worksite without authorization, but they’re still in a WMATA facility, that would be looked upon
as less severe [than] an employee who was absent from the worksite and went to go and do their
own personal business.” Jordan Dep. 36:15–37:3, 37:13–20.
And, regardless where McBride actually was, it is undisputed that, when McBride’s
assigned vehicle was observed at CTF, “Plaintiff was not with the vehicle, was not in the shop
area, and took approximately 45 minutes to report to his supervisor after a call went to voicemail.”
Def.’s Stmt. of Facts ¶ 9; Pl.’s Resp. to Stmt. ¶ 9. McBride claims that WMATA “refused to
provide [him] with a pager to use on the night in question as [he] had … requested … requiring
him to rely on his personal mobile phone for communication with his supervisor.” Pl.’s Resp. to
Stmt. ¶ 9.
Following the investigation, WMATA terminated McBride’s employment on June 15,
2015, stating that his employment was terminated “for falsifying reports and for his unauthorized

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absence from the worksite.” Def.’s Stmt. of Facts ¶ 11; Pl.’s Resp. to Stmt. ¶ 11; Jordan Decl.
¶¶ 13, 15. The letter notifying him of the termination memorialized his prior disciplinary history.
Term. Ltr., ECF No. 38-2, at 6. In March 2006, he had “received a three (3) day suspension for
poor workmanship”; in January 2007, he had been suspended for three days for being absent
without leave; and in February 2007, he had “received a three (3) day suspension for violating
roadway safety rules by failing to set up the high voltage warning strobe.” Id.; see Def.’s Stmt. of
Facts ¶ 15; Pl.’s Resp. to Stmt. ¶ 15. The termination letter stated that he was terminated “[a]s a
result of [his] gross misconduct and [his] continued inability to follow workplace rules.” Term.
Ltr.
McBride asserts that the prior actions “occurred more than five years prior to [his]
termination” and therefore, in his view, were not material. Pl.’s Resp. to Stmt. ¶ 15; see Def.’s
Resp. to Requests for Admission 18. Yet, following the March 2006 incident, McBride signed a
letter that he received from WMATA, acknowledging that the suspension would be “made a part
of [his] work history for all appropriate progressive discipline purposes.” McBride Dep. 43:3–
21(emphasis added). And, when asked whether, “[b]ased upon WMATA’s disciplinary policies,
. . . an employee’s history of prior discipline [is] usually considered when making additional
disciplinary decisions,” Jordan answered: “Usually.” Jordan Dep. 14:1–5.
As for how the level of disciplinary action is determined, Jordan testified that WMATA
has a “disciplinary matrix” that provides a “guideline” for disciplinary actions such as those
imposed following the investigation of the five employees. Jordan Dep. 8:11, 9:5–10:1, ECF No.
28-5.

As noted, the penalty for being absent without authorization “[d]epend[s] on the

egregiousness of it,” id. at 36:15–37:3, and “if an employee is absent from the worksite without
authorization, but they’re still in a WMATA facility, that would be looked upon as less severe

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[than] an employee who was absent from the worksite and went to go and do their own personal
business,” id. at 37:13–20. Jordan testified that it was his understanding that the penalty for
falsification of documents “is termination” and that he did not know of anyone who was found to
have falsified documents whose employment was not terminated. Id. at 44:7–21, 45:7–10.
Mr. McCaskill
In the early morning hours of May 18, 2015, a supervisor called McCaskill and inquired
about his whereabouts, and McCaskill said that “[h]e was at a [metro] station doing a preventive
maintenance check.” Jordan Dep. 16:11–17:10. Notably, WMATA policy is that, if a plumber
sent to a location to work completes the work at that location, the plumber can either perform
“[p]reventative maintenance on a station . . . to make sure it’s operational” or “[c]all [the]
supervisor for a[n] . . . [a]dditional assignment.” Jordan Dep. 34:3–21. If the plumber chooses to
perform preventative maintenance after completing a job, the plumber does not need permission
to do so. Id. at 34:22–35:4. Thus, “going to do preventative maintenance after [a plumber has]
completed [a] job assignment is not misconduct,” even if the plumber “leave[s] the site where the
original task that [he or she] was assigned was performed and go[es] to another site, which is a
different WMATA station, to perform preventative maintenance duties” and does not inform
anyone. Id. at 35:10–36:8.
WMATA used McCaskill’s “[d]aily activity, located log, and the vehicle trip log” to
confirm his location. Id. at 17:13–20; see also id. at 15:20-22 (“That particular night Mr.
McCaskill was responsible in returning a phone call and returning back to the shop on time. And
his documents proved it.”). Because of “his timeliness responding and his paperwork that was
turned in,” McCaskill, who had no prior disciplinary history, was not disciplined. Id. at 19:2–13.
McBride admits that “Mr. McCaskill was accused of absolutely no wrongdoing whatsoever related

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to the evening shift beginning on May 17, 2015,” and before that night, he “had never been
investigated or considered by management for any potential misconduct at WMATA.” Pl.’s Resp.
to Stmt. ¶¶ 21–22; see Def.’s Stmt. of Facts ¶¶ 21–22.
Thus, although McCaskill, like McBride, left the worksite without first obtaining
supervisor approval on May 18, 2015, his was not a prolonged absence, it did not involve the
additional offense of falsified documents, and he did not have a history of any prior disciplinary
actions, let alone one for unauthorized absence (as did McBride). Moreover, he left to perform
preventative maintenance at another metro station, a departure that WMATA permits without the
need for prior approval. Thus, there was not a basis for disciplining him, let alone terminating his
employment. Consequently, McBride and McCaskill are not “‘similar in all relevant respects,’
including . . . having ‘engaged in the same conduct without [meaningful] differentiating or
mitigating circumstances.’” Caban, 2019 WL 2146915, at *10 (quoting Haywood, 387 F. App’x
at 359). And, due to all of these “confounding variables,” McCaskill is not a proper comparator.
See Humphries, 474 F.3d at 405; Caban, 2019 WL 2146915, at *10; Bell, 2018 WL 3008325, at
*8.
Mr. Eichen
McBride states that “Mr. Eichen was not found at the Southern Avenue Station garage
testing standpipes or performing preventative maintenance checks as he had been assigned[;]
instead he was found outside of the complex asleep in his vehicle.” Pl.’s Opp’n 13. WMATA
agrees that “Mr. Eichen’s misconduct was that he was found asleep in a personal vehicle on site at
CTF.” Def.’s Reply 5; see also Jordan Dep. 7:9–13 (stating that Eichen “was discovered sleeping
in his vehicle on WMATA premises” while he was supposed to be working). Thus, Eichen, like
McBride, had engaged in misconduct on May 18, 2015. And, like McBride, Eichen had been

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disciplined before, albeit only once, in about February 2015, when he “left the worksite
unauthorized” and was given a one-day suspension. Jordan Dep. 12:1–13:16. Based on the
disciplinary matrix, his supervisors suspended him for five days for his conduct on May 18, 2015.
Id. at 8:9–10:1.
McBride argues that Eichen’s discipline was far less than his own termination of
employment, and this is true. But, McBride admits that “[w]ith respect to the evening shift
beginning on May 17, 2015, . . . Mr. Eichen [was not] accused of falsifying shift logs or of
unauthorized absence(s) from the worksite while on shift at WMATA.” Pl.’s Resp. to Stmt. ¶ 20;
see Def.’s Stmt. of Facts ¶ 20.
Certainly, McBride contends that “there are facts from which a reasonable fact finder could
determine that th[e] charge [of falsification of documents] is a contrivance as well as an artifact of
Defendant’s discriminatory conduct.” Pl.’s Opp’n 11. Yet, while he rationalizes the inaccuracy
of his trip log, he does not provide any justification for the inaccuracy of his daily activity record.
Moreover, as noted, WMATA considered sleeping at CTF, as Eichen did, to be a “less severe”
offense than leaving the worksite for “personal business,” as McBride did. Jordan Dep. 37:13–20.
Indeed, McBride’s termination letter stated that he was terminated “[a]s a result of [his] gross
misconduct and [his] continued inability to follow workplace rules.” Term. Ltr. (emphasis added).
In sum, WMATA’s investigation revealed that McBride falsified his daily activity log and,
at least at the time WMATA retrieved it, his trip log was inconsistent with his daily activity log
and the surveillance video, whereas Eichen did not falsify any documents; McBride had three past
disciplinary actions, whereas Eichen had only one; McBride left the premises for personal
business, whereas Eichen was on site at CTF; and there was no delay in finding Eichen, as there
was with McBride.

These differences militate toward a harsher disciplinary action under

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WMATA’s matrix. Consequently, Eichen also is not a proper comparator because he and McBride
are not similarly situated. See Humphries, 474 F.3d at 405; Caban, 2019 WL 2146915, at *10;
Bell, 2018 WL 3008325, at *8. Further, considering all of these facts in the light most favorable
to McBride, no “reasonable juror could conclude that illegal discrimination was a motivating
factor” in WMATA’s decision to terminate McBride’s employment but not Eichen’s or
McCaskill’s. See U.S. Equal Employment Opportunity Comm’n v. Dimensions Healthcare Sys.,
No. PX-15-2342, 2016 WL 4593470, at *3 (D. Md. Sept. 2, 2016) (citing Sawicki v. Morgan State
Univ., No. WMN-03-1600, 2005 WL 5351448, at *6 (D. Md. Aug. 2, 2005), aff’d, 170 F. App’x
271 (4th Cir. 2006)).

Because McBride has not identified a proper comparator or other

circumstantial or direct evidence of discrimination, I will grant summary judgment in WMATA’s
favor. See Linton, 2011 WL 4549177, at *5; see also Bryant, 333 F.3d at 545; Dimensions, 2016
WL 4593470, at *3.
ORDER
For the reasons stated in this Memorandum Opinion and Order, it is, this 8th day of August,
2019, hereby ORDERED that
1. WMATA’s Motion for Summary Judgment, ECF No. 28, IS GRANTED;
2. Judgment IS ENTERED in WMATA’s favor; and
3. The Clerk SHALL CLOSE this case.

/S/
Paul W. Grimm
United States District Judge
lyb

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