UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) SOON PARK, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-cv-761 (TSC) ) ) WASHINGTON METROPOLITAN ) AREA TRANSIT AUTHORITY, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Soon Park, who is of Korean descent, brings this employment discrimination

action pursuant to Title VII of the Civil Rights Act,

(e), et seq. against

Defendant Washington Metropolitan Area Transit Authority (WMATA), alleging discrimination

based on national origin. 1 WMATA has moved for Summary Judgment, ECF No. 17. For the

reasons stated below, the court will GRANT the motion.

I. BACKGROUND

Park worked as a mechanic for WMATA from 1975 until his retirement in 2002. ECF

No. 17-2, Defs. SOF ¶¶ 2–3. WMATA later rehired Park in 2008 as a part-time mechanic in its

Department of Traction Power Maintenance (DTPM), at its West Falls Church location, where

he was the only part-time re-employed retiree.

; ECF No. 21-1, Pls. SOF ¶ 6. Sometime

later, Theodore Bailey became Park’s area manager and eventually changed Park’s duties from

1 The court previously granted WMATA’s Motion to Dismiss Plaintiff’s Age Discrimination in Employment Act claim. ECF No. 12. 1 handling electrical repairs—which he had primarily done throughout his WMATA career—to

carrying and supervising heavy equipment, such as trailers and generators. Pls. SOF ¶¶ 7, 15–

17. Park subsequently requested what he describes as “safety equipment,” such as a block “that

goes behind wheels to prevent slippage and strips to prevent luggage to move back and forth.”

Pls. SOF ¶¶ 17, 19; ECF No. 21-2, Park. Dep. at 53–55. Park alleges that Bailey denied the

request because Park did not need these items and instead told Park he “should make them”

because Bailey did not have a credit card and therefore could not “make a request.” Park Dep. at

53–54. Park claims he then asked his first and second-line superiors to provide the safety tools,

but they told him to talk to Bailey, as he was their upper-level supervisor, and had a credit card

for this purpose. See

at 54−56.

Park claims he sought to make the tools he needed himself and tried to obtain cables from

a WMATA scrap metal dumpster on October 24, 2016.

at 55–58. But the Metro Transit

Police Department, having received a tip that someone was taking cables from a recycling

dumpster, discovered Park, who claims he explained to the officers that he wanted to “reuse” the

materials. Park Dep. at 58; Pls. SOF ¶ 22; ECF No. 17-6, Dorrity Decl. at ECF p. 8. According

to the police report, when the officers contacted several of Park’s supervisors, the supervisors

told them that cables should not be reused because only new cables should be installed on

projects. Dorrity Decl. at ECF p. 8. The supervisors also said the that the scrap materials had

value because WMATA recycled them.

Two weeks before the incident, Bailey was notified that someone had been observed

taking items from the dumpster and claims he informed his “direct reports,” and “personally

visited each shift” explaining that taking materials from the dumpster was considered theft of

WMATA property. ECF No. 17-5, Bailey Dep. at 36, 38–40. Bailey told the officers that he had

2 not given Park permission to reuse the cables and that any employee removing cables from the

dumpster should be criminally prosecuted. Pls. SOF ¶¶ 24–25.

The officers arrested Park and purportedly told him he could not return to WMATA

property until the criminal charges were resolved or he would be considered a trespasser. Park

Dep. at 16, 34–36, 46–47. But nobody from WMATA told Park to return his employee ID badge

or his work keys, and Park claims he still had them when he brought this case. ECF No. 10-2,

Park Decl. ¶ 3; ECF No. 19-1, Pls. Resp. to Defs. SOF ¶ 13.

On December 15, 2016, Doojin Han, Acting Assistant Superintendent for the DTPM, sent

a letter to Park at the address listed in his employment records informing him that his

employment was being terminated effective December 19, 2016. ECF No. 11-1, Han Decl. at

Ex. A. The letter did not give a reason for the termination.

Park claims he never received

the letter. Park Dep. at 18–19.

By December 28, Park received a pay stub reflecting a payment of zero dollars, and he

subsequently received four additional pay stubs in the same amount through February 1, 2017.

Defs. SOF ¶¶ 17–18. No additional pay stubs followed.

¶ 18

In mid-June, after learning that the criminal charges against Park had been dropped,

Park’s son contacted the union to arrange for Park’s return to work. ECF No. 10-1, Kyong Park

Decl. ¶ 2. Apparently, the union did not have any information that Park’s employment status had

changed, so a union representative contacted WMATA, who responded that Park had been

terminated. ECF No. 10-3, Kyong Park Decl. at Ex. A. On July 5, 2017, a union representative

forwarded a message from WMATA to Park’s son indicating that Park had been sent a

termination letter in mid-December of 2016.

at ECF p. 5. Park’s son claims that when he

called WMATA’s Human Resources Department to ask why it had sent no termination notice,

3 WMATA responded that the “position had been removed and no letter was required.” ECF No.

10-1, Kyong Park Decl. ¶ 5. Park’s son subsequently requested a copy of his father’s personnel

file, which did not contain a copy of the letter,

, although WMATA produced a copy of the

letter during discovery. ECF No. 11-1, Han Decl. ¶ 5; ECF No. 11-3, Ex. A. Park contends

WMATA discriminated against him based on national origin when it terminated him.

II. LEGAL STANDARD

Summary judgment is appropriate where there is no disputed genuine issue of material

fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett,

(1986). A dispute is “genuine” only “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc.,

(1986). In determining whether a genuine issue of material fact

exists, the court must view all facts in the light most favorable to the non-moving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986).

The moving party bears the “initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits . . .’ which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp.,

.

The nonmoving party, in response, must “go beyond the pleadings and by [its] own affidavits, or

by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts

showing that there is a genuine issue for trial.’”

. “[A]t the summary judgment stage

the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Liberty Lobby,

.

4 III. DISCUSSION

WMATA contends that summary judgment is warranted because Park did not file his

discrimination charge with the EEOC within 180 days of the alleged discrimination and, even if

he did timely file the charge, he has not presented sufficient evidence for a reasonable jury to

find his termination was motivated by discriminatory animus based on his national origin.

A. Exhaustion of Administrative Remedies

In Title VII cases, “an aggrieved party must exhaust his administrative remedies by

filing a charge of discrimination with the EEOC within 180 days of the alleged discriminatory

incident.” Washington v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 1998)

(citations omitted). But “the limits are not jurisdictional and ‘are subject to equitable tolling,

estoppel, and waiver.’” Vick v. Brennan,

(D.D.C. 2016) (cleaned up)

(quoting Bowden v. U.S.,

(D.C. Cir. 1997)). “Because untimely exhaustion

of administrative remedies is an affirmative defense, the defendant bears the burden of pleading

and proving it. If the defendant meets its burden, the plaintiff then bears the burden of pleading

and proving facts supporting equitable avoidance of the defense.” Bowden,

(citations omitted). “An employee is entitled to equitable tolling if he demonstrates ‘(1) that he

has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in

his way.’” Niskey v. Kelly,

(D.C. Cir. 2017) (quoting Holland v. Florida,

, 649 (2010)) (some citations omitted). “Equitable tolling is meant to ensure that the

plaintiff is not, by dint of circumstances beyond his control, deprived of a reasonable time in

which to file suit.” Dyson v. D.C.,

(D.C. Cir. 2013) (cleaned up and citation

omitted). “To avoid summary judgment, [the plaintiff] must show the existence of evidence

sufficient to permit a reasonable conclusion that the statute of limitations should have been

5 equitably tolled.” Smith-Haynie v. D.C.,

(D.C. Cir. 1998) (cleaned up and

citation omitted). “[T]he statutory clock in a discrimination case begins to run when a plaintiff

knows or should have known of the defendant’s discriminatory action.” Faison v. D.C.,

(D.D.C. 2009) (citation omitted); Rendon v. D.C., No. 85–3899,

, at *5 (D.D.C. Nov. 19, 1986) (granting summary judgment to defendant with respect to

claims plaintiff “knew or should have known arose” more than 180 days before the filing an

EEOC charge).

WMATA argues that because Park filed his EEOC charge on January 2, 2018, 379 days

after his December 15, 2016 termination letter, he did not timely exhaust his administrative

remedies, and an employee exercising due diligence would have discovered much sooner that he

had been terminated.

Park counters that he only learned of his termination on July 5, 2017, after his son

received the email the union forwarded from WMATA. See ECF No. 10-1, Kyong Park Decl.

¶¶ 4–5. Consequently, his January 2, 2018 EEOC charge, filed 180 days later, was timely. 2

Viewing the facts in the light most favorable to Park, the court finds he has proffered

evidence that a reasonable person would not have known that the statutory clock began to run

until the union informed him that he had been terminated. Park was facing criminal charges and

was told by a person in authority not to return to work until the matter was resolved. Moreover,

it appears that he retained possession of his ID badge and WMATA keys upon release from

2 180 days from July 5, 2017 was January 1, 2018, a federal holiday, and therefore Plaintiff had until January 2, 2018 to file his charge. U.S. Equal Emp’t Opportunity Comm’n, Time Limits for Filing a Charge, https://www.eeoc.gov/time-limits-filing-charge (last visited September 30, 2022). 6 custody. 3 Under these circumstances, a reasonable person might believe he was suspended

pending resolution of the criminal charges. As such, Park has evidence of “extraordinary

circumstances” standing in his way of timely pursuing his administrative remedies. See Niskey,

; Long v. Howard Univ.,

, 26–27 (D.C. Cir. 2008) (“jury instruction

concerning the University’s statute-of-limitations defense was well within the acceptable bounds

of its discretion” where instruction inquired when plaintiff “knew, or by the exercise of

reasonable care should have known” about alleged adverse employment action). And,

importantly, as soon as the charges were dropped, he immediately inquired (via his son) about

returning to work and learned he had been terminated. Thus, Park also has evidence that he

pursued “his rights diligently.” Niskey,

. Accordingly, the court will deny

summary judgment for WMATA on its timeliness defense.

B. Merits of the Title VII Claim

Title VII discrimination claims are analyzed under the familiar burden-shifting

framework of McDonnell Douglas Corp. v. Green,

(1973). See Young v. UPS,

(2015) (applying the McDonnell Douglas framework in a Title VII case). Under this

framework, the plaintiff has the initial burden of establishing a prima facie case of

discrimination.

. If the plaintiff does so, the burden shifts to the employer to articulate

a legitimate, nondiscriminatory reason for its actions.

If the employer proffers such a reason,

the burden reverts to the plaintiff to establish that the employer’s reason was actually a pretext

for discrimination.

3 Park’s own evidence about whether he kept his badge and keys upon release from custody is conflicting. Compare ECF No. 10-3, Kyong Park Decl. at Ex. A; Park Dep. at 34–39, 41 with ECF No. 10-2, Park Decl. ¶ 3; ECF No. 19-1, Pls. Resp. to Defs. SOF ¶ 13. But both parties base their legal arguments on Park’s sworn declaration stating that he retained the items after his arrest. See Defs. SOF ¶ 13; ECF No. 19-1, Pls. Resp. to Defs. SOF ¶ 13. 7 At the summary judgment stage however, once the defendant provides a legitimate,

nondiscriminatory explanation for its actions, “the district court need not—and should not—

decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.”

Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008) (emphasis in original).

Rather, at that point the 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?”

WMATA contends that it terminated Park for two reasons. First, it decided to terminate

all part-time mechanics in the DTPM because the “department’s needs were better served by full

time mechanics.” Def. SOF ¶ 21; ECF No. 17-4, Defs. Ans. to Interrogatories ¶ 6. Second, Park

abandoned his position when he failed to request a leave of absence or contact his supervisors

regarding the state of his employment after his arrest. Defs. Ans. to Interrogatories ¶ 6.

Because WMATA asserted legitimate, nondiscriminatory reasons for Park’s termination,

the burden shifts to Park to produce sufficient evidence for a jury to reasonably conclude that the

reasons for his termination are a pretext for discrimination. Park contends that he has established

a history of discriminatory treatment that supports a finding of pretext.

Park first points to Bailey’s handling of the dumpster incident. ECF No. 19, Pls.

Opposition at ECF pp. 9–10. Park notes that he is not fluent in English, that his supervisors

spoke to him in “easy” English, and that Bailey testified that Park spoke “broken English at

times.” Pls. SOF ¶¶ 12–13; Park Dep. at 71–72, 17–19. Accordingly, Park hypothesizes that

Bailey told employees not to obtain materials from the dumpster in a group setting where Park

8 either was not present or did not understand the instruction because Bailey failed to use “easy

English.” Pls. Opposition at ECF p. 9. 4

Park contends that Bailey should have known that Park’s language barrier was the “likely

cause of confusion over the [dumpster] situation.” Pls. Br. at 9. Consequently, Bailey should

not have recommended that the officers arrest Park without determining whether Park was

attempting to steal the equipment or merely taking it to use at work. Pls. Br. at 9–10. Park

further faults Bailey for not getting Park’s version of the incident, failing to maintain notes from

his “investigation” of the incident and calling, rather than following up in writing, with his

supervisors. Pls. Br. at 9–10.

Park’s attempts to establish pretext are unavailing. He disagrees with the way Bailey

handled the dumpster incident but has proffered no evidence that Bailey acted with

discriminatory intent. There is no evidence that Bailey selectively enforced the dumpster policy,

and Park does not provide a reason why Bailey should have questioned the police officer’s

account of Park’s role in the incident or should have assumed the incident stemmed from a

misunderstanding or miscommunication. The fact that Bailey did not speak to Park after the

arrest is also not unusual, as Park did not return to work and there is no evidence that Bailey

knew why Park had not returned. Bailey did, however, speak with several supervisors in an

attempt to find out what they knew about the incident, but did not uncover any additional

information. Bailey Dep. at 43–50. While Bailey could not locate his notes, he indicated that he

spoke with his supervisors about his investigation.

at 46–48. Nothing about these

circumstances suggest impropriety or discriminatory intent.

4 In his response to WMATA’s SOF, Park does not dispute that Bailey gave this instruction but claims it is “possible” Bailey gave the directive to others but not to him, due to his work hours. ECF No. 19-1, Pls. Resp. to Defs. SOF ¶ 31. 9 Park also claims that WMATA’s proffered reliance on his “inability to return to work” as

a basis for his termination due to abandonment is also evidence of pretext. Pls. Opposition. at

ECF pp. 11–12. This argument likewise fails, as there is no evidence that anyone in Park’s chain

of command knew that one of the police officers allegedly told Park he could not return to work.

Thus, it was not unreasonable for WMATA to have believed that Park—who was semi-retired—

had abandoned his job. See George v. Leavitt,

(D.C. Cir. 2005) (“[P]roving

that an employer’s reason is false will not always be sufficient to demonstrate pretext. This is so

because an employer’s action may be justified by a reasonable belief in the validity of the reason

given even though that reason may turn out to be false.”) (citation omitted)

Park contends that Bailey’s decision to move him to non-electrical work managing

equipment establishes pretext, Pls. Opposition. at ECF p. 10, but he has offered no evidence to

support this assertion. He presents no comparator evidence, nor any other evidence that would

suggest Bailey’s reasons for the reassignment were discriminatory. 5

Park also appears to contend that the manner in which WMATA handled his termination,

in contrast to the other part-time retirees, establishes pretext. He notes that the deciding official

notified Park about his termination in December 2016, while the other three part-time retirees

were not terminated until February 2, 2017, June 20, and June 30, 2017. Pls. Opposition at ECF

p. 11. Park also points out that the deciding official spoke with the other employees directly

about their termination, but did not speak to Park, nor was Park’s termination letter signed.

5 To the extent Park claims the reassignment supports an independent and actionable discrimination claim, there is no evidence that such a claim would be timely, as it occurred before the December termination letter. Thus, WMATA’s same timeliness arguments apply, and Plaintiff does not point to anything in the record suggesting that he was unaware that the reassignment was allegedly discriminatory. 10 Park’s comparator argument also fails. A plaintiff can demonstrate pretext in several ways,

including by showing “that the employer has treated similarly situated employees outside of her

protected class more favorably in the same circumstances.” Parker-Darby v. Dep’t of Homeland

Sec.,

(D.D.C. 2012) (citing Brady,

)) (cleaned up). The

plaintiff and the purported comparator must be “similarly situated,” however. Mason v. Geithner,

(D.D.C. 2011), aff’d,

(D.C. Cir. 2012). Indeed,

comparator evidence “will only give rise to an inference of discrimination if all of the relevant

aspects” of the plaintiff’s employment situation are “nearly identical” to those of the comparator.

Robertson v. Dodaro,

(D.D.C. 2011) (cleaned up) (quoting Neuren v.

Adduci, Mastriani, Meeks & Schill,

(D.C. Cir. 1995)).

Park has proffered no such comparator evidence. It is undisputed that he was the only

part-time re-employed retiree at the West Falls Church station, so it was not unusual that he was

terminated on a different date than his co-workers. Indeed, all the other former retirees were

terminated on different dates. Moreover, Park’s situation was unique; he had failed to return to

work after being arrested for allegedly stealing company property and had not contacted his

employer about his absence, and therefore it was not unusual that his supervisor did not to speak

with him directly about the termination. Thus, he has failed to produce evidence that his

situation was “nearly identical” in “all relevant aspects” to those of his cohorts.

Finally, Park has not proffered evidence that WMATA’s decision to shift work away

from part-time re-employed retirees to full-time employees was not the real reason for Park’s

termination. Nor is the absence of the termination letter in Park’s employment file or the

deciding official’s failure to sign Park’s termination letter evidence of pretext. These

11 discrepancies, in a company as large as WMATA, and without some evidence of discriminatory

intent, are insufficient to show pretext.

IV. CONCLUSION

For the reasons set forth above, the court will GRANT WMATA’s motion for summary

judgment.

Date: September 30, 2022

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

12