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Murphy v. Secretary, U.S. Department of Homeland Security, Customs and Border Protection

United States District Court, N.D. West Virginia, Martinsburg

July 11, 2019




         Now before the Court is the Defendant's Motion for Summary Judgment [ECF No. 104], filed on December 21, 2018. On January 2, 2019, the Plaintiff filed a response in opposition. ECF No. 108. Following the Court's Order striking the Plaintiff's response, the Plaintiff resubmitted his response in opposition [ECF No. 126] on February 11, 2019. The Defendant filed a reply in support of its motion on February 25, 2019. ECF No. 130. The Plaintiff filed a sur-reply on February 27, 2019. ECF No. 131. Accordingly, the matter has been fully briefed and is now ripe for review. For the following reasons, the Defendant's Motion for Summary Judgment is GRANTED.

         I. Background

         Dennis Finbarr Murphy (“Plaintiff”) brings this action against the Secretary of U.S. Department of Homeland Security, Customs and Border Protection (“Defendant”) pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1983. See ECF No. 1. Specifically, in his three-count complaint, the Plaintiff alleges that the Defendant discriminated against him based upon his religion and his wife's national origin and religion when it asked that he be removed from the contract, that his First Amendment right to freedom of religion was violated as a result and that his removal from the contract violated the Establishment Clause of the First Amendment. Id. The following facts are undisputed.[1]

         The Plaintiff was employed under a government contract as an armed security guard at the Department of Homeland Security, U.S. Customs and Border Protection's Advanced Training Center (“ATC”) in Harpers Ferry, West Virginia. The Plaintiff's employer, Swanson Action Facilities Enterprises (“SAFE”), a joint venture of Action Facilities Management (“AFM”), contracted with Customs and Border Protection (“CBP”) to provide armed security guard services at the ATC. The Plaintiff was employed from May of 2013 until September 23, 2014, when he was removed from the contract at the direction of CBP government managers. His removal from the contract ultimately resulted in the termination of his position with SAFE.

         The Plaintiff is Roman Catholic and his wife is an Asian Buddhist from Thailand. Plaintiff alleges that he had conversations regarding religious beliefs of himself and his wife with Captain David Wilt, fellow Officer Gregory Voorhees, contract security guards at CBP ATC, and Contracting Officer's Technical Representative (“COTR”) Rodger Ausherman who was a CBP employee.[2] Voorhees verbally complained about the Plaintiff harassing him on several occasions. Thereafter, on September 12, 2014, Voorhees submitted a letter to Captain Wilt complaining that Plaintiff created a hostile work environment by talking about his religious beliefs.[3] In his letter, Voorhees listed several examples, including one in mid-August, when the Plaintiff asked Voorhees what his denomination was and Voorhees answered he was Southern Baptist. In response, Voorhees alleges the Plaintiff “placed his hands up, did a short dance, and asked ‘are you the ones that dance with snakes?'” ECF No. 104-2 at 33. Voorhees described another incident on August 30, when the Plaintiff was mocking Voorhees' work duties. Voorhees also related a series of events wherein the Plaintiff was observing Voorhees' job duty performance rather than doing his own job.

         Alarm Monitor Jadranko Medich also wrote to Captain Wilt corroborating a portion of Voorhees' claims. On September 18, 2014, Captain Wilt presented the written complaints he received to COTR Ausherman. COTR Ausherman contacted Contracting Officer (“CO”) Rick Travis about the complaints of Voorhees and Medich. COTR Ausherman also included allegations from Chuck Robell, a Supervisory Security Specialist, that the Plaintiff was rude to him. COTR Ausherman also provided the statements to CO Travis by email.

         Melissa Young, SAFE's Vice President of Business Development and Operations/Compliance Officer, recommended the Plaintiff receive a one-day suspension and a verbal counseling. Without further investigation, COTR Ausherman and CO Travis decided to remove the Plaintiff from his contract. COTR Ausherman and CO Travis told Young the Plaintiff needed to be removed from the contract. Young directed Captain Wilt to advise the Plaintiff of his termination. On September 23, 2014, in the presence of Sergeant David Peacher, Captain Wilt informed the Plaintiff he would be terminated based upon a hostile work environment complaint or he could submit a resignation letter. The Plaintiff alleges he was told if he did not resign, he would risk losing his security clearance. On September 27, 2014, the Plaintiff emailed his resignation letter to Captain Wilt.

         II. Applicable Legal Standards

         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the Court must conduct “the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.

         The party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586. That is, once the movant has met its burden to show an absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence establishing there is indeed a genuine issue for trial. Fed.R.Civ.P. 56; Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted). A motion for summary judgment should be denied “if the evidence is such that conflicting inferences may be drawn therefrom, or if reasonable men might reach different conclusions.” Phoenix Savs. & Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967); see also id. at 253 (noting that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge”).

         III. Discussion

         A. Count I - Discrimination Based on Religion and National Origin

         In Count I of the Plaintiff's complaint, he alleges disparate treatment because his religion and the race and religion of his wife were different from that of the federal employee managers at the CBP who presided over his termination. The Plaintiff alleges that “without cause and without them conducting an investigation, they acted on false allegations made against the [P]laintiff by a fellow guard who in the words of the deciding CBP managers involved glowingly described as a[n] ‘ordained Southern Baptist Minister.''” ECF No. 1 at 2.

         1. Applicable Law for Discrimination Claim

         Pursuant to Title VII, the discharge of any individual based upon the individual's religion or national origin is an unlawful employment practice. 42 U.S.C. § 2000e-2(b). Under a disparate treatment theory of religious discrimination, “an employee must demonstrate that the employer treated [him] differently than other employees because of [his] religious beliefs.” Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996). “The plaintiff can meet his burden at the summary judgment stage by proving his job performance was satisfactory and by either providing direct or indirect evidence of discrimination or by using ‘a burden-shifting scheme similar to the one the Supreme Court articulated in McDonnell Douglas Corp. v. Green . . . to develop an inferential case.'” Rayyan v. Virginia Dep't of Transportation, 719 Fed.Appx. 198, 205 (4th Cir. 2018).

         A plaintiff can establish a prima facie showing of discrimination by demonstrating: “(1) he was a member of a protected class; (2) he was satisfactorily performing his job at the time of the termination; (3) he was terminated from his employment; and (4) the prohibited conduct in which he engaged was comparable in seriousness to misconduct of other employees outside the protected class who received less severe discipline.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019). If the plaintiff establishes a prima facie showing, “the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions towards the employee.” Chalmers, 101 F.3d at 1017-18. If the employer meets this burden, the “employee is then required to show that the employer's proffered reason is pretextual, and that the employer's conduct toward [him] was actually motivated by illegal considerations. At all times, the ultimate burden of persuasion lies with the employee.” Id. at 18.

         2. Analysis

         The Plaintiff has not provided direct evidence of discrimination. Therefore, he must make a prima facie showing of discrimination. The Defendant does not dispute that the Plaintiff, as an individual alleging discrimination on the basis of his faith, is a member of a protected class. Also, the Defendant does not dispute that the Plaintiff was was removed from the ATC contract, which ultimately resulted in the termination or resignation of his employment with SAFE. However, the Defendant argues the Plaintiff cannot prove his job performance was satisfactory and the Plaintiff has not presented evidence that other employees, who were not members of his protected class, were retained under similar circumstances.

         a. Satisfactory Job Performance

         The Defendant argues that the Plaintiff cannot prove his job performance was satisfactory. In support, the Defendant alleges that in November 2013 Sergeant Shawyer verbally counseled the Plaintiff for his unprofessional behavior. According to Sergeant Shawyer, the Plaintiff's concerning himself with his co-workers' job performance resulted in the Plaintiff's neglect of his own job responsibilities. Sergeant Shawyer's memorandum of the counseling noted the Plaintiff needed to “understand that the position of Senior Officer on the weekend is NOT a supervisor position therefore he needs to stop trying to act like a supervisor on weekends.” ECF No. 104-2 at 51-52.

         The Defendant alleges that the Plaintiff also engaged in unprofessional behavior in August 2013 when he involved ...

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