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Fanord v. Washington Metropolitan Area Transit Authority

United States District Court, D. Maryland

September 1, 2017

JEAN FANORD, Plaintiff,



         Plaintiff Jean Fanord is a former employee of Defendant Washington Metropolitan Area Transit Authority ("WMATA)) who was terminated from his position and is now suing WMATA under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. SS 2OOOe-2000e-17 (2012), for alleged religious and national origin discrimination Presently pending before the Court is WMATAss Motion for Summary Judgment. Having reviewed the briefs and submitted materials, the Court finds no hearing necessary. See D. Md. Local R. 105.6. For the reasons set forth below, WMATAss Motion for Summary Judgment is GRANTED.


         Fanord is from Haiti and is Christian. On April 29, 2013, he was offered a position with WMATA as a full-time Automatic Train Control ("ATC") Mechanic Helper, a position that required him to perform routine maintenance on electronic, electrical, electro-mechanical, and mechanical equipment. As a new hire, he was required to undergo a 90-day probationary period.

         Fanord began his employment with WMATA on June 3, 2013 at WMATAss Greenbelt Metro Station. Fanord was assigned to the 10:30 p.m. to 6:30 a.m. shift and reported to Sintayehu Negash, his Shift Supervisor. Fanord first met Negash on June 10, 2013. According to Fanord, during that meeting, Negash asked him where he was from. When Fanord told Negash that he was from Haiti, Negash asked him if he was Muslim. In response, Fanord told Negash that he was Christian, at which point the conversation ended. Fanord asserts that from that day forward, he had problems with Negash, specifically that if Fanord asked Negash questions, Negash responded negatively, appearing to believe that Fanord was challenging his authority.

         In his position, Fanord was at times required to go into the Metro train tunnels. Employees working in the tunnels are issued personal protection equipment ("PPE"), which may include such items as a hard hat, a safety vest, safety eyewear, safety footwear, and a flashlight. According to WMATA, its policy is to not issue such equipment to probationary employees, even when such employees are posted to locations where PPE would otherwise be provided. Fanord asserts that when he was required to go into the tunnels, he was provided with only a safety vest, even though other employees were also given a flashlight and a hard hat. Fanord did not know whether the employees given the additional PPE were probationary or permanent,, and he did not know of any other probationary employees working under Negash. Fanord asserts that when he asked Negash for additional safety equipment,, Negash told him that the equipment was not necessary because Fanord was a probationary employee, and that each time he asked for a hard hat, Negash told him to look in the trash. At one point, Negash ordered Fanord to help clean at the Fort Totten Metro station, where there was a high-voltage rail, but did not provide him with protective gloves.

         As part of his training, Fanord was expected to read various training manuals, including the "red book, " a manual for Metro employees. Although Fanord was expected to read this book, Negash never gave him a copy of it. When Fanord requested the red book from other staff members, he was informed that there was a copy on a communal bookshelf. Negash did give Fanord a copy of another manual, one dealing with cranking and blocking, and instructed him to read it. Cranking and blocking are critical functions to the ATC system. Over the course of his probationary period, Fanord read both books. Nevertheless, within the first 80 days of his employment,, he was twice unable to qualify for certification in cranking and blocking. According to Fanord, Negash was supposed to train him in cranking and blocking on the job site but never did so. However, Fanord was trained in the technique by another supervisor.

         On August 26, 2013, Fanord began a five-week ATC new hire familiarization class, which would run from 2:30 p.m. to 10:30 p.m. each day. On the first day of the class, he was given a basic electronics screening test, on which he scored 24 percent. Of the 20 people in the course, Fanord was one of seven to fail the exam. He and another employee had the lowest scores. Because he did not receive a passing grade, Fanord was informed that he would be required to enroll in a basic electronics remedial course and that he would be given one week to retake the proficiency exam.

         The administering and grading of the exam on August 26 did not take the entire eight-hour class period. After the instructor distributed the test results, he informed those who had passed the exam that they could go home. According to Fanord, he asked the instructor whether he was to report for his 10:30 p.m. shift in Greenbelt, and the instructor informed him that he was to return to work the next day. The instructor also stated that he would be emailing Fanord's supervisor to report that Fanord had not passed the test and would need to retake the exam.

         At about 11:30 p.m., Fanord received a call from Negash to ask him why he had not reported to work. The next day, when Fanord reported for his shift, Negash again asked him why he had not reported to work the previous day. Fanord answered that he had been in class, which ran from 2:30 p.m. until 10:30 p.m. According to Fanord, in response Negash asked, "why are you lying to me, when you say that you are a Christian?" Joint Record ("J.R.") 33 (Fanord Deposition,, ECF No. 29-1.

         As a probationary employee, Fanord was supposed to receive written performance evaluations at the 30, 60, and 80-day marks. At the 30-day mark, Negash did the review verbally, telling Fanord only that "everything is okay, you're fine." J.R. 32. According to Fanord, Negash did not conduct a review by the 60-day mark. After confronting Fanord about his absence on August 26, 2013, Negash pulled out a written employee evaluation form and stated, "Since you are lying to me, this is what I'm going to do."J.R. 33. Fanord then gave Negash a copy of an email that established that the instructor had notified supervisors that the students were being sent home early, and that Negash had not requested that Fanord report to work that evening. When Negash saw the email, he apologized to Fanord and told him that it was "going to be much ... easier" for him to complete Fanord's performance review. Id.

         Negash then completed Fanord's written evaluation form and included ratings for the 30, 60, and 80-day time periods. The form requires supervisors to evaluate employees in seven categories: Attendance, Technical Knowledge, Interpersonal Skills, Work Habits, Quality/Quantity of Work, Responsiveness to Supervision, and Certification and License Requirements. Employees can be given one of four ratings: an "N" for Needs Improvement, a "C" for Competent, an "E" for Exceeds, and an "0" for Outstanding. Negash gave Fanord Ns or Cs in all categories. He gave Fanord an "N" at the 30-day mark for Attendance, noting that Fanord "needed to understand midnight scheduled hours, on time."J.R. 4. When Fanord complained about this assessment, asserting that he had not missed any work during his initial 30-day period, Negash explained that Fanord had missed his first day, because his Monday through Friday schedule actually began on Sunday night. Fanord received an "N" for each reporting period in Technical Knowledge, with Negash noting that Fanord needed to demonstrate initiative to read the WMATA manual and to take time to understand the ATC nomenclature. He was given an "N" for the 30-day period in Work Habits, with the explanation that "instruction[s] have to be repeated."J.R.4. For Responsiveness to Supervision, Fanord was given an "N" for the 30 and 60-day periods, without explanation. He was given a "C" for the 80-day period with the explanation that he was "a bit combative."J.R.5. Under Certification and License Requirements, Fanord received an "N" for all reporting periods, with the notation "not ready." Id. The written evaluation form closes with a Recommendation section, where a supervisor must state whether, at the 30, 60, and 80-day marks, he recommends the employee for permanent employment based on the employee's overall performance. For each reporting period, Negash recommended Fanord for permanent employment.. Negash gave Fanord a copy of his written evaluation on August 2S, 2013. Although Fanord did not agree with Negash's assessments, he signed it.

         Based on that evaluation, and despite Negash's recommendation that Fanord be made a permanent employee, Hernando O'Farrell, the ATC Regional Manager, decided to terminate Fanord. O'Farrell made his decision based on Fanord's score on the basic electronics screening test, his failure to certify in cranking and blocking, and the substance of his performance evaluation. Prior to making the termination decision, O'Farrell had never met Fanord and had no knowledge of his religion or national origin. On August 29, 2013, Fanord met with Truong D. Bui, the ATC Superintendent,, who formally terminated him from his position. Negash, who was also present, informed Fanord that he was being terminated as a result of his low score on the basic electronics screening test. Beyond completing the written evaluation, in which he had recommended Fanord for permanent employment, Negash had n~t discussed details of Fanord's performance with upper management prior to Fanord's termination.

         At no point during his employment at WMATA did Fanord ask for an accommodation for his religious worship. Although Fanord believed that Negash's treatment of him was based on his national origin, at no point did Negash make derogatory remarks about Fanord's Haitian ancestry. In contrast to Fanord, Hien Bui, the other employee who had received marks as low as Fanord's score on the ATC exam, was given a permanent position. However, Bui, who worked under a different supervisor, had received Outstanding or Exceeds ratings in most categories, Competent ratings for Technical Knowledge and Certification and License Requirements, and ...

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