United States District Court, N.D. West Virginia, Martinsburg
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE
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
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.
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.
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. 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. 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.
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.
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.
Applicable Legal Standards
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.
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”).
Count I - Discrimination Based on Religion and National
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.
Applicable Law for Discrimination Claim
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).
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.
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
Satisfactory Job Performance
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.
Defendant alleges that the Plaintiff also engaged in
unprofessional behavior in August 2013 when he involved