IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

DARRYL MURRAY,

Plaintiff,

v.

ALLEN WEINSTEIN, Archivist

of the United States,

National Archives and

Records Administration,

Defendant.

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CIVIL ACTION 

NO. 05-4557

ORDER

AND NOW, this day of , 2007,

upon consideration of the government’s Motion for Summary

Judgment (Docket Entry No. 26), the memoranda submitted in

support thereof and in opposition thereto, and after a

January 25, 2007 hearing at which plaintiff and counsel for

the government were heard, IT IS HEREBY ORDERED that:

1. The motion for summary judgment is GRANTED.

2. JUDGMENT is ENTERED in favor of defendant and

against plaintiff, with prejudice.

BY THE COURT:

 

HONORABLE NORMA L. SHAPIRO

Senior Judge, U.S. District Court
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

DARRYL MURRAY,

Plaintiff,

v.

ALLEN WEINSTEIN, Archivist

of the United States,

National Archives and

Records Administration,

Defendant.

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CIVIL ACTION 

NO. 05-4557

GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56(b),

the government respectfully moves for summary judgment, as

reflected in the attached proposed Order, all as set forth

in the accompanying memorandum of law.

Respectfully,

PATRICK L. MEEHAN

United States Attorney

 

VIRGINIA A. GIBSON

Assistant United States Attorney

Chief, Civil Division

 GBS3408

GERALD B. SULLIVAN (PA#57300)

Assistant United States Attorney

615 Chestnut Street, Ste. 1250

Philadelphia, PA 19106-4476

(215) 861-8786

(215) 861-8349 (fax)
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

DARRYL MURRAY,

Plaintiff,

v.

ALLEN WEINSTEIN, Archivist

of the United States,

National Archives and

Records Administration,

Defendant.

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CIVIL ACTION 

NO. 05-4557

 

MEMORANDUM OF LAW IN SUPPORT OF 

GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

 
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TABLE OF CONTENTS

I. INTRODUCTION. .................... 1

II. FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . 3

A. Pre-August 2004. . . . . . . . . . . . . . . . . 3

B. The August 2004 Postings and NARA’s Response. . 6

C. The Post-August 2004 Postings, And

NARA’s September 16, 2004 Response. . . . . . . 13

D. The Events of September 22, 2004,

And The Resulting Investigation. . . . . . . . . 18

E. NARA’s Proposed Removal of Murray

From Service. ................. 26

F. The Final Agency Decision To Remove Murray. . . 28

III. LEGAL ARGUMENT: THIS MOTION SHOULD BE GRANTED. . . . 34

A. Murray Fails To Point To Any

Evidence Of Disparate Treatment. . . . . . . . . 34

B. Murray, Beyond Speculation, Fails

To Point To Any Evidence Of Discrimination. . . 40

C. Murray’s Attack On NARA’s Business Decision

To Terminate Him, Which Was Based On

Legitimate And Non-Discriminatory Reasons

And Procedures, Does Not Save His Claim. . . . . 43

D. No Reasonable Factfinder Could Conclude That

NARA’s Articulated Reasons For Terminating

Murray Were So Implausible That They Must

Have Been A Pretext For Discrimination. . . . . 47

IV. CONCLUSION. ..................... 52
ii

TABLE OF AUTHORITIES

Cases

Abramson v. William Paterson College

of New Jersey,

260 F.3d 265 (3d Cir. 2001). . . . . . . . . 34, 35

Bailey v. Principi,

2003 WL 22245100 (E.D. Pa. Aug. 20, 2003). . 41, 44

Bullock v. Children’s Hosp. of Phila.,

71 F. Supp. 2d 482 (E.D. Pa. 1999). . . . . 36, 42

Celotex Corp. v. Catrett,

477 U.S. 317 (1986). . . . . . . . . . . . . . . 36

Fuentes v. Perskie,

32 F.3d 759 (3d Cir. 1994). . . . . . . 44, 46, 50

Harp v. SEPTA,

2006 WL 1517390 (E.D. Pa. May 31, 2006) 

(Shapiro, J.). ............... passim

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). . . . . . . . . . . . . . . 35

Peterson v. Hewlett-Packard Co.,

358 F.3d 599 (9th Cir. 2004). . . . . . . . . . 39

Pivirotto v. Innovative Sys., Inc.,

191 F.3d 344 (3d Cir. 1999). . . . . . . . . . . 41

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000). . . . . . . . . . . 35, 47-48

Sheridan v. E.I. DuPont de Nemours and Co.,

100 F.3d 1061 (3d Cir. 1996) (en banc). . . . . 47

Shnabel v. Abramson,

232 F.3d 83 (2d Cir. 2000). . . . . . . . . . . 48
iii

Smith v. Borough of Wilkinsburg,

147 F.3d 272 (3d Cir. 1998). . . . . . . . . . . 47

Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248 (1981). . . . . . . . . . . . . . . 35

Statutes, Regulations, and Rules

42 U.S.C. § 20000e-16.. . . . . . . . . . . . . . . . . . 34

5 C.F.R. § 734.101.................... 17

5 C.F.R. § 734.306.................... 17

Fed. R. Civ. P. 50.................... 48

Fed. R. Civ. P. 56.................. 36, 48
1

I. INTRODUCTION

Plaintiff Darryl Murray, a Muslim, alleges that

religion-based disparate treatment employment discrimination

caused his firing from the National Archives and Records

Administration (“NARA”). Before discovery began, it was

unclear whether he was disputing that he had threatened his

NARA workplace. He has since admitted during his

deposition, however, that in September 2004, while he was on

disciplinary administrative leave from NARA and in the

parking lot of the Federal Records Center in Philadelphia

where he worked, he stated to a NARA-based security guard

there, with specific reference to the Federal Records

Center: “Somebody ought to blow that place up.” Exhibit

“1" hereto (Deposition of D. Murray), at 180-185; 188-190. 

His so remarking is one of the two grounds for his removal

from NARA service. He is unaware of any non-Muslim NARA

employee who has uttered similar remarks, let alone an

employee who remained employed after doing so. 

Regarding the other ground for his removal --

that, after being directed to cease doing so, he

insubordinately continued to post comments at his work
2

station that disparaged co-workers, management, and the

workplace -- Murray does not dispute such displays. Nor

does he identify any non-Muslim co-workers who similarly

flouted a management directive to cease such postings (or

who even ever posted similarly disparaging commentary), much

less who remained employed after such insubordination.

What the summary judgment record reveals, apart

from Murray’s mere speculation that his religion may have

played some role in NARA’s decision to terminate him, is not

only an absence of evidence of religious discrimination but

such conduct that would justify any employer in firing any

employee. NARA managers, fully directed by NARA

headquarters, and carefully following NARA written

guidances, found that Murray’s conduct justified his

termination. Because no reasonable factfinder could

conclude that NARA’s articulated reasons for so finding were

so implausible that they must have been a pretext for

discrimination, Murray cannot carry his summary judgment

burden, and the government respectfully requests summary

judgment in its favor.
3

II. FACTUAL BACKGROUND

A. Pre-August 2004

For approximately twenty years, plaintiff Murray

has been a non-practicing adherent to the Islamic faith. 

Exhibit “1” hereto (Deposition of Darryl Murray), at 11. He

subscribes to some views of the Nation of Islam. Id. at 11-

12. Until his employment was terminated in November 2004,

Murray was -- and had been since 1987 -- an Archives

Technician at the NARA Mid-Atlantic Records Center (“Federal

Records Center”), which is located at 14700 Townsend Road in

Northeast Philadelphia. Id. at 12-14. 

Beginning in 2003, Murray worked in the facility’s

Trust Fund Section where, among other things, he filed and

retrieved case files for the federal district courts. 

Exhibit “1,” at 14; 16-17. His first-level supervisor in

2003 and 2004 was Elizabeth Washington, a Protestant. Id.

at 14; Exhibit “2” (E. Washington EEO Affidavit), at 1-2. 

NARA management appraised Mr. Murray’s work performance, for

the October 1, 2002 to June 28, 2003 period, as

unacceptable. As a result, he was denied a within-grade pay

increase at the end of that period. Exhibit “1,” at 45-46;
4

Exhibit “3” (J. Janshego Affidavit), at ¶ 26. In August

2003, Murray was suspended for three days for neglect of

duty and for inaccurately reporting completed work and

carelessness. Exhibit “1,” at 52-53; Exhibit “3,” at ¶ 22

and Exhibit “G” thereto. 

According to Murray, by no later than the year

2000, a “clique” of co-workers that included Mitchell

Buffone, a Catholic, and whose constituents all were at pay

grades higher than Murray’s, had “declared war” on him

(Murray) and had begun harassing him. Exhibit “1,” at 30-

33; 47-48. “The clique,” Murray maintains, influenced

management’s decisions on whether to promote staff to higher

pay grades and persuaded management never to promote Murray. 

Id. at 235-236; Exhibit “4” (Deposition of co-worker Irene

Jones), at 40. 

In early 2003, Murray, feeling betrayed by

Buffone’s refusal to support the hire of one of Murray’s

friends, wrote Buffone a letter “terminating [their]

friendship.” Exhibit “1,” at 40-41. In response, Buffone

complained to then-Director of Operations of the Federal

Records Center, David Roland, a non-practicing Roman
5

Catholic, that he (Buffone) feared for his life around

Murray. Id. at 62-63; Exhibit “5” (D. Roland EEO

Affidavit), at 1-2. Murray’s distrust and dislike of

Buffone and the clique increased when, later in 2003: 

(a) someone put pasta on Murray’s car while it was parked

outside the Federal Records Center; (b) personal items went

missing from his work station; and (c) someone recurrently

placed trash on top of his desk. Exhibit “1,” at 47-48; 63;

65-67. Murray now believes that Buffone was the responsible

individual. Id. at 48; 64. 

Additionally, in late 2003, and throughout 2004,

certain of Murray’s personal documents, toiletries, and

other items disappeared from his work station on an ongoing

basis. Exhibit “1,” at 58-60; 65. He suspects, again, that

Mr. Buffone -- perhaps conspiring with a deaf and mute coworker, Hong Diep, who was not a member of the clique --

was/were responsible. Id. at 60-61; 100-102. Then, in

August 2004, Murray observed a scratch on his new car. He

similarly suspects (and suspected at the time) that Mr. Diep

and/or Mr. Buffone was/were responsible. Id. at 65-69; 85-

86; 102. 
 Each staff member at the Federal Records Center who 1

performs the sort of work that Murray performed is assigned a

cubicle -- similar to a library carrel -- that adjoins similar

cubicles in an oft-traveled open area near stacks of filed

records. See Exhibit “1,” attached deposition exhibit “Murray13" (photograph of Murray’s work station). 

6

B. The August 2004 Postings And NARA’s Response

Murray never formally complained to management

about any of these alleged incidents. Exhibit “1,” at 69-

70. He did however make, in his words, “several veiled

comments or threats about wishing someone [to] do something

drastic to force management to” deal with the clique. 

Id. at 71-72. For example, he announced to the security

guard at the Federal Records Center that someone should drop

boxes “on managements’ head.” Id. at 72. He also chose, in

the weeks leading up to August 17, 2004, and in a passiveaggressive effort to express some of his anger and

frustration, to post at his work station messages to and

about the clique and management. Id. at 65; 76; 83. 1

Murray intended many such postings that were directed at coworkers as “retaliation.” Id. at 76-77; 79; 102-103; see

also id. at 80 (Murray stating that purpose of comments was

“to let [clique members] know that I knew what they were

doing as far as my items missing and trash under my desk. I
7

couldn’t accuse them outright, not [having seen] them

[commit the offenses], but I was letting them know [that I

knew what they were doing] by putting up adjectives that

best described their personality and known character”)

(interpolations added). 

By way of example of such postings, Murray, in

response to the placing of trash on his desk, displayed

above his desk in plain view of co-workers the comment

“Worthless Losers, Nothing Ass Employees.” Exhibit “1,” at

67 and attached deposition exhibit “Murray-12” (photographs

of Murray’s August 17, 2004 postings). To criticize the

clique, and primarily Mr. Buffone, he posted the comments:

“Low Self[-]Esteem, Inferiority Complex, Inflated Ego,

Jealous/Envious.” Exhibit “1,” at 80 and attached

deposition exhibit “Murray-12.” After observing what Murray

considered to be the one-the-job indolence of Buffone and a

fellow clique member, Murray posted the comment “Federal

Record Center Is Not An Equal Opportunity Employer,” by

which he meant that “people [such as Buffone] don’t have to

work [hard] . . . [and therefore] the work is not equal.” 

Exhibit “1,” at 85 and attached deposition exhibit “Murray-
 He posted the Farrakhan article, which was about “the 2

possible origin of dysfunctional families, especially in

America,” not as a part of a religious statement but as a

reminder that he should finish reading the article. Exhibit “1,”

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12” (interpolations added). And in response to the

scratching of his car, he posted the remark: “Revenge Is A

Dish Best Served Cold.” Exhibit “1,” at 85-86; 102; and

attached deposition exhibit “Murray-12.” This was intended

to send a message to “who[ever] scratched my car” that “if I

find out” who they are “I am going to scratch their car

back.” Exhibit “1,” at 86. Murray contends that he posted

near these statements the comment, “The Beast Is Coming

After You,” merely as a reminder to himself that the movie

“The Predator” was being released in August 2004. Id. at

86-88.

By August 17, 2004, Murray was also displaying at

his work station -- together with a poster from the Michael

Moore film Farenheit 9/11 and the cover of a publication by

the head of the Nation of Islam, Louis Farrakhan -- the

messages/comments: “Osama [bin Laden] Didn’t Do It”; “`Osama

Totally Exonerated’; An Innocent Man”; “Who Are The Real

Terrorist[s]?”; and “ALLAH AKBAR,” which, according to

Murray, is Arabic for “God is great.” Exhibit “1,” at 74- 2
at 82-83. He also posted: (i) an article entitled “The

Government’s war on the black family”; and (ii) a picture of a

deceased member of the National of Islam on which Murray wrote,

again in Arabic, “God is great.” Id. at 83-84 and attached

deposition Exhibit “Murray-12.” His stated purpose in making

these two postings was similarly not to make a religious

statement but simply to remind himself to read more about the

subject matter of the article and about the deceased individual. 

Exhibit “1,” at 83-84. 

 In 1996, Murray, after distributing in the workplace 3

documents that management found objectionable, entered into a

written agreement not to “post or distribute” “any materials in

the workplace.” Exhibit “1,” at 27-28 and attached deposition

exhibits “Murray-1" through “Murray-4.” At his deposition in

this case, Murray stated that he interpreted the 1996 agreement

to bar him in perpetuity from posting only threatening and

offensive materials of a racial or religious nature. Exhibit

“1,” at 29; 77-78; 81; 88-90; and 137-138 (Murray defining

“offensive” as either offensive to Catholic co-workers’ politics,

race, or religion or offensive to “the Catholic hierarchy”). 

9

77 and attached deposition exhibit “Murray-12.” His intent

in making these displays was to highlight to co-workers

Michael Moore’s thesis that Osama bin Laden had been a

United States government “scapegoat” for the September 11,

2001 attacks. Exhibit “1,” at 76-77. 

3

According to Murray, there was no religious

content in his August 2004 postings apart from the Arabic

references to “God is great.” Exhibit “1,” at 81-82; 88;

104-105; and 125. He does not understand how any of the

postings could have been viewed as offensive by co-workers

or management, because he did not name any NARA employees by
 Ms. Janshego, who works in NARA’s Human Resources 4

Division, guides and directs NARA managers at locations

throughout the United States, including in the Mid-Atlantic

region, on employee relations matters such as employee

performance and discipline. Exhibit “3,” at ¶¶ 1-2. From 1995

until Mr. Murray was terminated from NARA service, Janshego was

the Human Resources Specialist who was responsible for directing

and guiding Federal Records Center managers on performance,

discipline, and related matters concerning Murray. Id. at ¶ 3. 

Under the governing NARA written guidance, NARA managers such as

McEvoy and Roland were required to “obtain advice and assistance”

from Ms. Janshego or someone in her office before proposing to,

or finally deciding to, remove a NARA employee from NARA service. 

Id. at ¶¶ 16-17 (Janshego stating that her office is required to

ensure that proposed and final removal notices “meet[] the

procedural and other requirements for taking” such actions). 

When managers consult Janshego about such matters, her “normal

procedure” is, “while in discussions with the manager(s), to

advise a course of action, to prepare the notices, and to send

them to management for suggested changes and/or concurrence.” 

Id. at ¶ 17.

10

name. Id. at 91. He now agrees, however, that many of the

postings that took aim at co-workers were inappropriate. 

Id. at 128. 

On August 17, 2004, the then and current Director

of Records Center Operations, John McEvoy, a Protestant,

first saw Mr. Murray’s postings. Exhibit “6” (McEvoy EEO

Affidavit), at 1; 4. Wanting to respond appropriately,

Director McEvoy immediately consulted with Joan Janshego, a

NARA Human Resources Specialist in employee relations at

NARA headquarters in College Park, Maryland, and David 4

Roland, who by then had been promoted to Assistant Regional
11

Administrator for NARA’s Mid-Atlantic Region. Exhibit “6,”

at 4; Exhibit “3” (Janshego Affidavit), at ¶ 4. That same

day, after reviewing photographs of Murray’s postings,

Janshego drafted, for the signature of Murray’s first-line

supervisor, Elizabeth Washington, a letter that McEvoy

reviewed and concurred in and that Ms. Washington, later

that day, handed to Murray. Murray then immediately

acknowledged receipt and review of the letter by signing it. 

Exhibit “3,” at ¶ 4; Exhibit “2,” at 2-3; Exhibit “1,” at

92. 

In the letter, NARA management concluded that

Murray’s then-recent postings were “offensive to coworkers,

the security force and management” and “create[] a hostile

work environment and will not be tolerated.” Exhibit “3,”

Exhibit “A” thereto. NARA management further “order[ed]”

Murray:

[T]o immediately remove (no later than

2:30 p.m. today) all of these materials

from your work area and to never display

them or anything similar in any work area

at the National Archives. To be clear,

you are to display no materials that make

reference to race, religion, political

views or that make disparaging remarks in

any way at any location at the National

Archives.
12

Id. (emphasis added). In the closing paragraph of the

letter, Murray was warned: “If you fail to follow this

order, you will be charged with insubordination, which will

form the basis for removal from the federal service.” Id.

Also on that date, August 17, 2004, Mr. Murray sat

down with Ms. Washington to discuss the particular

requirements of the directive, and he then responded by

removing all posted items from his work station. Exhibit

“1,” at 94-99; Exhibit “2,” at 2. Murray believed and

continues to believe that the directive resulted from Mr.

Buffone or another co-worker complaining to management that

the postings were offensive to staff. Exhibit “1,” at 99;

103. Murray speculates that the directive aimed, in part,

at harassing him because he had written “God is great” in

Arabic on some of his postings. Id. at 125-126. He

understood that, because he had promptly removed all of the

work station postings in compliance with the directive, he

would not be disciplined for those postings but would,

rather, be disciplined only if he made further postings in

violation of the directive. Id. at 142. He also understood

that he was not to post further comments similar to the
13

comments that he had removed, including disparaging comments

such as “worthless losers, nothing ass employees.” Id. at

238-239.

C. The Post-August 17, 2004 Postings, 

And NARA’s September 16, 2004 Response

Notwithstanding the August 17, 2004 directive,

Murray soon resumed posting materials at his work station,

and he continued to do so until September 16, 2004. 

Meanwhile, he never consulted with management to determine

whether any of the new postings were in violation of the

directive. Exhibit “1,” at 124. None of his post-August

17, 2004 displays (as Murray admits) had any religious or

race-based content. Id. at 107. In violation of the

directive, however, the new displays contained political

content and remarks that were disparaging of co-workers,

management, and the workplace. 

Specifically, as Murray acknowledged, after August

17, 2004 he posted, in full view of co-workers:

• The following comments relating to the thenupcoming November 2004 presidential election: “It’s Just A

Matter Of Time Now. Be Patient. Vote Nov[.] 11, 2004[.]

Kerry[.]” Exhibit “1,” at 109 and attached deposition
14

exhibit “Murray-13” (photographs of Murray’s work station on

9/16/04). These reflected, in part, Murray’s hope that John

Kerry would be elected U.S. president. Exhibit “1,” at 110-

111.

• The comment “Two Legged Cockroaches,” which

was directed at co-worker Hong Diep because Murray suspected

him of removing boxes from Murray’s desk. Exhibit “1,” at

113; 123-24; and attached deposition exhibit “Murray-13.” 

Murray intended this comment to be retaliatory and to

“mock[]” Diep. Exhibit “1,” at 113. Murray knew that the

posting was disparaging to Diep, and he agrees that it was

inappropriate. Id. at 123; 127-28. 

• The comment “Beware of the Snitch Committee,”

which Murray now says was a suggestion to his friends to be

cautious about gossiping. Exhibit “1,” at 112-113 and

attached deposition exhibit “Murray-13.” 

• The title of the movie “Predator,” as well as

a graphic depicting a predatory creature from that movie,

which were displayed above a posted copy of NARA Interim

Guidance 300-1, Personnel 300, Chapter 752. That chapter

guides NARA on applicable “disciplinary and adverse actions”
15

against employees. According to Murray, the juxtaposition

of these postings signified nothing, and the “predator”

references were there merely to remind him about the release

of the movie. Exhibit “1,” at 109-114.

• Finally, under the phrase “American

Gov[ernmen]t vs. American People (Human Race),” three

documents on which Murray made handwritten comments. 

Exhibit “1,” attached deposition exhibit “Murray-13.” On

the first document, which was an e-mail exhorting the

African-American community’s vigilance regarding voting

rights, Murray wrote “Separate + Unequal.” On the second

document, an August 2004 memo from Director McEvoy to

various staff that attached revised NARA polices, Murray

highlighted a reference to NARA’s “Absence and Leave” policy

and wrote “None Dare Call It Conspiracy!” On the third

document, the August 17, 2004 directive to Murray from NARA

management, Murray drew an arrow from Director McEvoy’s name

to the name of an article, “The Government’s Assault on the

Black Family.” At the bottom of this posted directive

Murray wrote: “The Plot Thickens!” 
16

Murray testified that these phrases that he wrote

on the three documents, as well as his posted statement

above them, were all references to books that he intended to

read and were (notwithstanding the added exclamation points)

mere self-reminders to read them. He asserted that the

underlying documents were displayed simply to keep them from

getting lost on, or taken from, his desk. Exhibit “1,” at

114-122. In so testifying, Murray distanced himself from

his union representative’s October 2004 letter on his behalf

in which the representative stated that the comments on the

three documents expressed Murray’s “feelings about workplace

conditions.” Id. at 118-119 and attached deposition exhibit

“Murray-18.” 

When confronted at his deposition with the

political and disparaging content of these postings, Murray

testified that, in his current view, he did not violate the

August 17, 2004 directive, even though it stated a

prohibition on the posting of such content. According to

Murray, he chose to interpret the directive narrowly to bar

him from posting only such material that would be
 Hatch Act regulations prohibit all federal employees, 5

while on duty, from engaging in “political activity,” which is

defined as “an activity directed toward the success or failure of

a political party, candidate for partisan political office, or

partisan political group.” 5 C.F.R. § 734.101. Murray was

specifically prohibited from displaying partisan political signs

while on duty. 5 C.F.R. § 734.306 (Example 16). See generally

NARA Notice No. 2003-189, Exhibit “7" hereto (warning NARA

employees in July 2003 that “[v]iolations of the Hatch Act may

result in disciplinary action, up to and including removal”).

17

“offensive” “to the Catholic hierarchy.” Exhibit “1,” at

105; 111-112; and 137-140. 

On September 16, 2004, Mr. McEvoy and Mr. Roland

first observed Murray’s post-August 17, 2004 postings. 

Exhibit “6,” at 2; Exhibit “5,” at 4. McEvoy and Roland

found many of these postings to be of concern, and some even

to be threatening; they furthermore believed the postings to

be in violation not only of the August 17, 2004 directive

but also, possibly, of the Hatch Act. Exhibit “6,” at 2-3; 5

Exhibit “5,” at 4. That same day, McEvoy forwarded

photographs of the new postings to NARA Human Resources

Specialist Janshego, and McEvoy consulted with Janshego and

Roland about how to respond. Exhibit “3,” at ¶ 5; Exhibit

“6,” at 2; Exhibit “5,” at 4. 

Janshego then immediately prepared, for McEvoy’s

review and approval, a letter to Murray stating that: 
18

(i) McEvoy was consulting with Janshego’s division regarding

Murray’s “recent misconduct”; (ii) Murray was being placed

on administrative leave, with pay, until further notice;

(iii) Murray was required immediately to turn in his NARA

badge; (iv) Murray was required, while on leave, to call

McEvoy every Wednesday morning; and (v) Murray was required

to call Janshego if he had any related questions. Exhibit

“3,” at ¶ 5. McEvoy approved the letter and, on the same

day, September 16, 2004, handed a copy to Murray -- which

Murray then acknowledged by signing -- during a meeting

among McEvoy, Murray, and Ms. Washington in McEvoy’s office. 

Id. at ¶ 6 and Exhibit “B” thereto (copy of letter); Exhibit

“1,” at 145; 147-148. Murray says that after receiving the

letter he promptly turned in his badge, cleaned out his

locker, and left the work site. Exhibit “1,” at 146.

D. The Events of September 22, 2004, 

And The Resulting Investigation

Under the terms of the September 16, 2004 letter,

Murray was required to call Director McEvoy on the morning

of Wednesday, September 22, 2004. At approximately 10:00

a.m. on that day, Murray left the following voice message

for McEvoy:
 Both of these voice recordings were preserved and were 6

produced to Murray during discovery in this case.

19

Hey Johnny, it’s ah, this is ah, Darryl

Murray calling, ah, the paper said to

call you every Wednesday at 10 o’clock,

ah, I’m having some problems with my

passport trying to get a flight back, but

you can call me, ah, on 215-681-8924. 

There might be a little disturbance on

the plane but I still should be able to

still get a signal. Talk to you later

Mr. McEvoy.

Exhibit “1,” at 156-161; Exhibit “3,” Exhibit “I” thereto

(November 9, 2004 Final Decision Letter), at 5; Exhibit “6,”

at 5. A few minutes later, Murray left a voice message for

his supervisor, Ms. Washington, in which he stated that he

had taken “a little flight overseas,” was experiencing some

“passport problems,” but “should be back in town by Friday.” 

Exhibit “1,” at 157-161; Exhibit “3,” Exhibit “I” thereto,

at 5. 

6

Murray has since admitted not only that he made

these telephonic statements but that they were in fact

“white lies.” Exhibit “1,” at 158-161. He confesses that

when he made the calls he was in Philadelphia in the

presence of a female friend who wanted him to travel abroad

for a vacation while he was on administrative leave, and he
 Hammond testified that he left a voice message for Murray 7

between September 17 and 21, 2004. Exhibit “8” (Deposition of W.

Hammond), at 24-25. 

20

was trying to mislead her into thinking, contrary to fact,

that he could not do so because he had passport problems. 

Id. at 158-161 and attached deposition exhibits “Murray-17"

and “Murray-22.”

The same morning, after placing those calls,

Murray drove his female friend to a doctor’s appointment in

Northeast Philadelphia near the Federal Records Center. The

friend’s three-year-old son rode with the couple. Exhibit

“1,” at 162-163. While the friend was at her appointment,

Murray remained in the car, with the child sleeping in the

back seat. Id. Murray then checked the voice messages on

his cell phone and heard one from a NARA co-worker, Warren

“Skip” Hammond, who had called to learn how Murray was

faring. Id. at 153-156; 164. Because it was almost the 7

records center lunch hour, Murray decided quickly to drive

there in the hope that he could speak to Hammond and perhaps

other co-worker friends. Id. at 164; 170-171. Before

leaving for the records center, Murray called the

receptionist there and asked her to page Hammond to let him
 Hughes works for Alrod Security Services, which is under 8

contract with the U.S. Department of Homeland Security to secure

the NARA Federal Records Center. Exhibit “6,” at 5; Exhibit “9”

(J. Hughes EEO Affidavit), at 1.

 Hughes states, contrary to Murray, that he yelled out the 9

front door to Murray, “Darryl, what are you doing here?” Murray

then replied, “I am here to blow up the building; I’m here to see

Skip.” Exhibit “9,” at 2 and attached 9/22/04 statement. Hughes

then stated, “Darryl, watch what you say,” and Murray laughed in

response. Id. Murray added: “I’m bringing my people up here,

and you know what that means.” Id.

21

know that Murray would soon be arriving, which she agreed to

do. Id. at 164-166. 

Minutes later, Murray entered the records center

parking lot and parked his car (with the child passenger

still sleeping and the engine still running) in front of the

building entrance. Exhibit “1,” at 166-171. As soon as

Murray arrived, the Federal Records Center security guard,

James Hughes, a Protestant, emerged from the building, and 8

Murray (according to his testimony) asked Hughes if he had

seen Mr. Hammond. Exhibit “1,” at 171-172; 174; 184;

Exhibit “9” (J. Hughes EEO Affidavit), at 1. Hughes then 9

re-entered the records center. Exhibit “1,” at 184. While

inside, Hughes received confirmation from records center

management that Murray was not permitted on NARA property. 

Exhibit “9,” at 3. Meanwhile, some of Murray’s co-workers,
 According to Hughes, Murray stated: “When I come back, 10

I’m blowing up the place.” Exhibit “9,” at 4 and attached

9/22/04 statement.

22

including Irene Jones, exited the building for their lunch

hour. Exhibit “1,” at 173; 178. Jones walked over to

Murray’s car, spoke to him through the rear passenger’s side

window, and asked him about the child passenger. Id. at

174-175; Exhibit “4,” at 15; 17. 

Security Officer Hughes then re-emerged from the

records center and (according to Murray) stated: “Darryl,

they said that you are not welcome[] on the property.” 

Exhibit “1,” at 175-176; 184-185. Hearing this, Murray felt

humiliated, embarrassed, and angry. Id. at 179-180; 185;

188. He knew Hughes and therefore felt that he could speak

to him without having his comments repeated to management. 

Id. at 179. Experiencing a kind of “road rage,” Murray

(according to his deposition testimony as well as his

written statements) then stated to Hughes that “somebody

ought to blow that place up.” Id. at 180-185; 187; 189-190;

and attached deposition exhibits “Murray-23,” “Murray-24,”

and “Murray-25.” 

10
23

Murray testified that Ms. Jones turned away from

his car and spoke to other co-workers during his discussion

with Security Officer Hughes, and Murray does not know

whether Jones heard any of the conversation. Exhibit “1,”

at 178. Jones herself testified that, though she saw Hughes

and Murray speak to each other, she may not have heard much

of the conversation between them, and she has no basis for

disbelieving any of Murray’s assertions about statements

that he made to Hughes. Exhibit “4,” at 17-20; 22-23. In a

statement that Jones gave to a federal investigator

immediately after the incident, Jones denied having heard

anything. Exhibit “10” (Special Agent L. Pepe Affidavit),

at ¶¶ 5 and 9 and attached notes from September 24, 2004

interview of I. Jones (recording that Jones “denied hearing

any of the conversation between Murray [and] the guard”). 

At her deposition, Jones stated that she had given an honest

statement to the investigator. Exhibit “4,” at 28-29.

Murray says that, when Hughes told him that he was

not welcome at the records center, he had speculated that

his co-worker, Mr. Diep, had said something to management

that had led to Murray being prohibited from NARA property. 
 Among other things, FPS polices and secures federal 11

agencies, including NARA. Exhibit “10,” at ¶ 2. 

24

Exhibit “1,” at 187. Murray testified that his statement

that “somebody ought to blow that place up” was therefore

only in part meant to communicate that someone ought to blow

the records center up; the comment was also meant to convey

his momentary feeling that someone ought to blow up Diep. 

Id. at 186-187 and attached deposition exhibit “Murray-16.” 

According to Murray, he further said to Hughes at that time,

“I might need to bring Johnnie Cochran and the dream team

back with me.” Exhibit “1,” at 188; 192. Murray then drove

out of the parking lot and did not return to the records

center. Id. at 177; 186. 

As soon as Director McEvoy learned about Murray’s

comments from Security Officer Hughes that same day, McEvoy

and Hughes telephoned the Criminal Investigations &

Intelligence Section of the Federal Protective Service

(“FPS”) of the Department of Homeland Security, and FPS

Special Agent Louis Pepe began investigating the incident. 

Exhibit “6,” at 5; Exhibit “9,” at 4; Exhibit “10,” at 

¶ 3. McEvoy took Murray’s stated threats especially 11

seriously because of the “security-conscious environment”
 Murray consents to the public use of the FPS file as an 12

exhibit in this case. Exhibit “1,” at 259.

25

after “the incidents of 9/11/2001 and Oklahoma City.” 

Exhibit “6,” at 5. 

On September 22, 2004, Special Agent Pepe

interviewed Security Officer Hughes, who repeated Murray’s

comments that he was at the records center, or would be

returning to the facility, to “blow the place up.” Exhibit

“10,” at ¶¶ 4 and 9 and attached interview notes thereto. 

The following day, Special Agent Pepe interviewed Murray at

his home. Exhibit “1,” at 193-195; Exhibit “10,” at ¶ 7.12

Accompanying Pepe were another FPS Special Agent and a

Philadelphia Police Department detective. Exhibit “10,” at

¶ 7; Exhibit “1,” at 196. When asked if he had ever

threatened to “blow up” the records center, Murray did not

tell the investigators about his now-admitted comment to

Security Officer Hughes. Exhibit “1,” at 198-200; Exhibit

“10,” at ¶¶ 8 and 9 and notes attached thereto from Murray

interview. Murray stated to the investigators only that he

had gone to the records center the previous day to see Mr.
 Pepe also interviewed McEvoy on September 23 and Irene 13

Jones (see supra at page 23) on September 24. Exhibit “10,” at

¶¶ 5-6; 9.

26

Hammond about “a small debt.” Exhibit “10,” at ¶ 8; Exhibit

“1,” at 200-201.13

E. NARA’s Proposed Removal Of Murray From Service

Between September 22 and 24, 2004, Director McEvoy 

apprised Human Resources Specialist Janshego about the

reported events of September 22, and McEvoy and Janshego

discussed at length how NARA should respond both to Murray’s

September 2004 workplace postings and to the September 22

threatening remarks. Exhibit “3,” at ¶¶ 6-7. The two

agreed that NARA -- with Janshego’s direction and guidance,

and after her full review -- would immediately write to

Murray and propose to remove him from NARA service within 30

days. Id. at ¶ 7. 

Janshego then prepared a proposed removal notice,

which she based on two separate instances of misconduct. 

The first cited ground was Murray’s insubordination in

failing, by displaying his September 2004 postings, to

comply with the August 17, 2004 directive against displaying

any material “that makes reference to . . . political views
27

or that makes disparaging remarks in any way” and that

warned him that any such further postings would result in a

charge of insubordination that would lead to removal. 

Exhibit “3,” at ¶ 8. The second cited ground of misconduct

was Murray’s September 22, 2004 threatening remarks, which

violated NARA Interim Guidance 300-19. That guidance

states, in part, that: “NARA will not tolerate comments

concerning weapons or bombs or other threats directed to

NARA security guards -- even if the comment was intended as

a joke.” The guidance adds that employees who make such

remarks are subject to disciplinary action, criminal

penalties, or both. Exhibit “3,” at ¶ 8 and Exhibit “C”

thereto.

Director McEvoy reviewed the proposed removal

notice, approved it, and sent it to Murray On September 24,

2004. Exhibit “3,” at ¶ 10 and Exhibit “D” thereto (notice

of proposed removal); Exhibit “1” at 208-209; Exhibit “6,”

at 6. The notice invited Murray to reply in writing and

advised him that he could designate an attorney or other

representative. Exhibit “3,” Exhibit “D” thereto. The only

reply that Murray made, however, was by way of October 21,
28

2004 letter from his union representative, James Cassedy, to

Mr. Roland, who was the NARA deciding official. Exhibit

“3,” at ¶ 11 and Exhibit “E” thereto (Cassedy letter). 

F. The Final Agency Decision To Remove Murray

Mr. Roland and Ms. Janshego fully considered Mr.

Cassedy’s statement. Exhibit “3,” at ¶¶ 11-15; 24. In the

final decision letter that she prepared for Roland, Janshego

re-emphasized, with Roland’s concurrence, that Murray was

not being disciplined for his August 17, 2004 postings

(because he had promptly removed them as ordered) but for

his insubordination in later failing to follow the

prohibition in the August 17, 2004 directive on political

and disparaging remark postings. Id. at ¶¶ 13; 14; 19. 

Janshego and Roland noted that Cassedy did not suggest that

Murray’s “Vote Nov. 11 2004 Kerry” posting was apolitical. 

Cassedy conceded, moreover, that the posted “two legged

cockroach” comment referred to Murray’s colleague and was

Murray’s “humorous attempt at revenge.” Cassedy added that

the posted comments “None Dare Call It Conspiracy,” “The

Plot Thickens,” and “Separate and Unequal” were Murray’s

“protest of working conditions at the NARA facility.” 
29

Janshego’s proposed final decision letter therefore

considered those comments to be disparaging of the NARA

workplace and in violation of the August 17, 2004 directive. 

Id. 

With regard to Murray’s September 22, 2004 parking

lot remarks, both Janshego and Roland, after reading

Cassedy’s response, remained of the view that Murray had

threatened the Federal Records Center and/or NARA employees. 

Id. at ¶ 15. Janshego and Roland considered that Cassedy:

(i) did not deny that Murray had referred to “blowing up the

place” but, rather, characterized that remark as “at worse 

. . . a bad, off hand attempt at humor”; and (ii) admitted

that Murray made the remark during a moment when he was

“shocked, humiliated and angry.” Id. Having considered

Cassedy’s response, Janshego advised Roland that, in her

draft of the final decision letter, she would conclude that

Murray’s stated defense to the charge of threatening remarks

was unacceptable because, among other things, the remarks,

even if intended as a joke, were in violation of NARA

Interim Guidance 300-19 and were of serious concern to NARA. 

Id. 
30

In drafting the final decision letter, Janshego

adhered to and was guided by the NARA Penalty Guide, which

is Appendix 752A to NARA Interim Guidance 300-1, Personnel

300. Exhibit “3,” at ¶ 20 and Exhibit “F” thereto. 

Specifically, she relied upon the penalties for the offenses

that are listed as numbers 5 and 7b. Id. Listed offense

number 5 is “Insubordination: direct or indirect refusal to

comply with instructions issued by a supervisor; disrespect,

insolence, and similar behavior.” Janshego concluded that

this corresponded to the “insubordination” offense that had

been stated in the notice of proposed removal and that was

re-stated in the draft final decision letter. Id. She

advised Roland that the penalty range for such an offense,

regardless of whether it was a first or second offense,

authorized Murray’s “removal.” Id. at ¶¶ 20; 22; and

Exhibit “F” thereto.

Listed offense number 7b in the NARA penalty guide

is “Disorderly Conduct: Fighting, or threatening,

attempting to inflict, or inflicting bodily injury on

another person.” Janshego concluded that this corresponded

to the “threatening remark” offense that had been stated in
 She also advised Roland that it was appropriate to 14

consider the offense under the penalties listed for “7b” offenses

regardless of whether or not Murray’s threatening remarks fit

neatly into the 7b offense definition. Id. (citing NARA Interim

Guidance 300-1, Personnel 300, Chapter 752, Part 1, Paragraph

8a). 

31

the notice of proposed removal and that was re-stated in the

draft final decision letter. Exhibit “3,” at ¶ 21 and

Exhibit “F” thereto. She counseled Roland to view this

offense category in the light of NARA Interim Guidance 300-

19, which states that NARA takes seriously all threatened

incidents of violence. Id. at ¶ 21. She advised Roland 14

that the penalty range for such an offense, regardless of

whether it was a first or second offense, authorized

Murray’s removal. Id. at ¶¶ 21-22 and Exhibit “F” thereto.

Janshego instructed Roland further that, though

the two cited offenses could be viewed individually, they

should, consistently with the governing NARA Interim

Guidance, instead be viewed together, with the seriousness

of the offenses being given due weight. Exhibit “3,” at 

¶ 23 (citing NARA Interim Guidance 300-1, Personnel 300,

Chapter 752, Part 1, Paragraph 8c). Roland agreed with

Janshego that the two cited offenses should be considered to
 Janshego advised Roland that Murray’s offenses were 15

second offenses because he had been suspended for 3 days in

August 2003 for neglect of duty and for inaccurately reporting

completed work and carelessness. Exhibit “3,” at ¶ 22. She

further advised Roland not to base his penalty determination upon

Murray’s 14-day suspension in 1996 because it occurred too long

in the past to be considered a prior offense. Id.

32

be second offenses. Id. at ¶ 22. With the offenses so 15

jointly viewed as second offenses, and Janshego’s draft

final decision notice reflecting that view, Janshego advised

Roland, and he agreed, that removal from federal service was

the appropriate penalty for Murray. Id. at ¶ 23. 

In arriving at the decision to remove Murray,

Roland and Janshego assessed the appropriateness of removal

under the sanctions considerations known as “Douglas

factors” that have been established by the Merit Systems

Protection Board. The notice of final decision that

Janshego drafted reflected that assessment and

consideration. Exhibit “3,” at ¶¶ 24-26. In the context of

the Douglas factor analysis, Janshego noted in the draft

notice that removing Murray was consistent with penalties

that NARA had imposed upon other employees for the same or

similar offenses, though Murray was the first NARA employee
 According to Janshego: (i) NARA removed one employee in 16

the Mid-Atlantic Region in December 2003 for making a threatening

remark in the workplace and lying during the course of the

related administrative investigation, which were the employee’s

first offenses; (ii) NARA decided to remove another employee at

headquarters in February 2002 for threatening a building security

guard, but the employee, for whom that was a first offense,

resigned before the removal went into effect; and (iii) NARA

removed a Maryland employee from service in 1989 on a first

offense charge of insubordination for failing to follow an order

to turn in work to his supervisor. Exhibit “3,” at ¶ 25 (also

stating that none of the three employees was known by NARA to be

Muslim). 

33

to be charged with both an insubordination and a threatening

remark offense. Id. at ¶ 25. 

16

As the deciding official, Mr. Roland reviewed Ms.

Janshego’s draft notice of final decision to remove Murray

from NARA service, concurred in it, and on November 9, 2004

sent it, as the agency’s final decision notice, to Murray. 

Exhibit “3,” at ¶ 27 and Exhibit “I” thereto. Murray was

removed from NARA service on November 16, 2004.
 Title VII prohibits, with respect to personnel actions 17

affecting employees, federal government employer “discrimination

based on . . . religion[.]” 42 U.S.C. § 2000e-16(a).

 These are: (1) disparate treatment, involving an 18

employer’s direct, intentional discrimination against a person of

a particular religion; and (2) failure to accommodate a person’s

religious beliefs or practices. See, e.g., Abramson v. William

Paterson College of New Jersey, 260 F.3d 265, 281 (3d Cir. 2001).

 See Exhibit “1,” at 216 (Murray testifying that he never 19

requested management to accommodate his religious beliefs in any

way).

34

III. LEGAL ARGUMENT: THIS MOTION SHOULD BE GRANTED

This Court previously ruled that plaintiff

Murray’s only remaining claim is for religion-based

employment discrimination. (Docket Entry No. 18.) Of the 17

two types of religious discrimination claims, Murray 18

asserts only a disparate treatment claim. The facts that 19

are material to that claim are not disputed, and none of

Murray’s contentions has merit. This is so for one or more

of the following four interrelated reasons.

A. Murray Fails To Point To Any 

Evidence Of Disparate Treatment

First, Murray cannot satisfy his prima facie

burden of showing that, in terminating his employment, NARA

treated him -- based on his religion -- differently from

other similarly situated (or even non-similarly situated)
 Because of the absence of direct evidence of 20

discrimination, Murray must make a prima facie showing that: 

(1) he belonged to a protected class (Muslims); (2) he was

qualified for the job that he lost; (3) he suffered an adverse

employment action (termination); and (4) the job termination

occurred under circumstances that support an inference of

discrimination, such as that similarly situated persons who did

not belong to Murray’s protected class (e.g., non-Muslim

employees) were treated more favorably. See, e.g., Abramson v.

William Paterson College of New Jersey, 260 F.3d 265, 281-82 (3d

Cir. 2001) (also stating that elements of prima facie case for

discriminatory discharge based on race or sex are nearly

identical to those for such a case based on religion). If Murray

were to carry his prima facie burden, a rebuttable presumption of

discrimination would arise, which NARA can rebut by articulating

a legitimate, nondiscriminatory reason for terminating him. See,

e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

142 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973) (same); Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248, 253-54 (1981) (same). Should NARA articulate such a

reason, Murray must demonstrate that the reason is a pretext for

unlawful discrimination, and on this Murray bears the burden of

persuasion. McDonnell Douglas, 411 U.S. at 802.

 Although as discussed in the statement of facts, supra, 21

Murray cannot show that his job performance was satisfactory in

2003 and 2004, the government does not seek summary judgment on

this ground, though it may raise this deficiency at trial should

this motion be denied. 

35

employees. As a part of that burden, Murray must point to 20

evidence showing not only that his job performance was

satisfactory but also that (1) a comparable non-Muslim 21

NARA employee (2) made similarly threatening remarks to the

parking lot statement that Murray made on September 22, 2004

and/or (3) similarly failed to follow an order to cease

displaying political or disparaging remark comments -- or
 See Bullock v. Children’s Hosp. of Phila., 71 F. Supp. 22

2d 482, 489 (E.D. Pa. 1999) (to show disparate treatment,

plaintiff has to point to persons who engaged in same conduct he

did without “such differentiating or mitigating circumstances

that would distinguish their conduct or the employer’s treatment

of them for it”) (quotation marks omitted). 

 Summary judgment is mandated where, as here, the 23

plaintiff has failed “to make a showing sufficient to establish

the existence of an element essential to that party’s case and on

which that party will bear the burden of proof at trial.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed.

R. Civ. P. 56(e) (“When a motion for summary judgment is made and

supported as provided in this rule, an adverse party may not rest

upon the mere allegations or denials of the adverse party’s

pleading, but the adverse party’s response . . . must set forth

specific facts showing that there is a genuine issue for trial”)

(italics added); accord Harp v. SEPTA, 2006 WL 1517390, at *3

(E.D. Pa. May 31, 2006) (Shapiro, J.) (“mere conclusory

allegations or denials are not enough to preclude summary

judgment”).

36

similarly offensive or threatening material -- but 

(4) nevertheless was not fired. Murray fails, however, to 22

satisfy his summary judgment burden even with respect to

these minimal demands for a prima facie case of

discrimination.23

Murray admits that there are no such non-Muslim

comparators. Regarding his threatening remarks, Murray has

failed to identify any -- and is unaware of any -- NARA

employee who has uttered similar remarks to his statement

that “somebody ought to blow that place up,” let alone who

remained in employment after making such remarks. Exhibit
 Regarding “racial” content, Murray testified only that 24

Mitchell Buffone, an Italian-American, had posted photographs of

Mafia figures, but in 2004 was required to cease, and then

apparently did cease, such displays. Exhibit “1,” at 151-153. 

 Exhibit “1,” at 149; 150-151; see also Exhibit “4” 25

(Deposition of I. Jones), at 49 (co-worker/friend of Murray’s

stating inability to recall records center staff apart from

Murray ever posting anything political in content). 

 Exhibit “1,” at 149-151; see also Exhibit “4,” at 49 26

(co-worker stating inability to recall records center staff apart

from Murray ever posting anything that threatened co-workers,

management, or the workplace). 

37

“1,” at 216. Regarding his offense of insubordination, the

record is similarly devoid of evidence of comparator

employees. See Exhibit “1,” at 152-153 (Murray stating

inability to identify any of his co-workers who were treated

more favorably than he was for posting religious, political,

or disparaging remark content). He testified that, in the 24

entire time that he worked at the Federal Records Center, he

never observed any postings that were similar to his in

their political content. Nor did he, in the entire time 25

that he worked there, ever observe any postings by coworkers

or managers that made disparaging remarks towards other

employees. There is thus no record evidence that Murray’s 26

charged offenses of making threatening remarks and
 Exhibit “1,” at 150-151; see generally Exhibit “5” (D. 27

Roland EEO Affidavit), at 5 (“No one had things posted that were

as extreme as Mr. Murray’s”); Exhibit “2” (E. Washington EEO

Affidavit), at 4 (“I have not observed anyone else in my section

[posting] similar things [to what Murray posted]”). 

38

insubordination were out of line with NARA’s treatment of

non-Muslims.

Murray has on occasion in this case suggested that

he is challenging as discriminatory not only the September

2004 charge of insubordination but also the underlying

August 17, 2004 directive. He has, however, pointed to no

evidence that any non-Muslim co-worker posted content

similar to what was contained in his August 17, 2004

postings that NARA management found troubling (for example,

his posted disparaging remarks and his apologetics for Osama

bin Laden). To the extent that those postings could be

characterized as having any religious content apart from the

Arabic saying “God is great,” Murray never observed, in the

entire time that he worked at the Federal Records Center,

any displays by coworkers or managers that had similar

content. Rather, the only religious-content postings and 27

displays that Murray ever observed there were of the wholly
 Murray faintly recalled seeing on a records center desk 28

a magazine about the Holocaust in which there was a picture of a

swastika, which may have been within an article condemning the

Holocaust. Exhibit “1,” at 50-51; 151-152. 

 Exhibit “1,” at 51-52 (Murray stating that he had a 29

Koran at his desk when he worked at the Federal Records Center,

and was never asked to remove it); id. at 49-51 (referring to

NARA employees being permitted to post or display on their

computer screen savers or work stations “Christian crosses,

Jewish Menorah symbols . . . prayers”), and at 149 (stating that

some co-workers kept on screen savers statements of faith such as

“God is great”); see also Exhibit “4,” at 48-49 (co-worker

testifying that she was unable to recall records center staff

posting anything religious that was considered offensive).

 Cf. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 605 30

(9th Cir. 2004) (in religion-based disparate treatment action,

rejecting terminated employee’s comparisons of himself with other

employees who posted religious and other messages and symbols but

were not fired because plaintiff “failed to present any evidence

that the posters in other . . . employees’ cubicles were[, like

plaintiff’s,] intended to be hurtful to, or critical of, any

other employees,” and because there was an absence of record

evidence that employer “would have permitted any . . . employee

to post messages . . . that demeaned other employees”) (quotation

marks omitted).

39

non-offensive sort, and neither he nor his co-workers were 28

taken to task for displaying religious prayers, books, and

symbols. There is thus no basis in the record for a claim 29

that non-Muslims who posted material similar to Murray’s

August 17, 2004 postings were not issued a similar NARA

directive to cease their displays, because there were no

such similarly offensive, beyond-the-pale postings.30
40

NARA, in fact, has handled the most analogous

instances of insubordination and threatening remarks by nonMuslim employees similarly to the way that it handled

Murray’s offenses. See Exhibit “3” (J. Janshego Affidavit),

at ¶ 25 (stating that there have been two recent instances

of NARA employees making threatening remarks, and one case

of employee insubordination, and NARA acted to remove all

three employees, none of whom was known by NARA to be

Muslim, and none of whom had been charged with being both

insubordinate and making threatening remarks). In sum,

therefore, Murray has failed to satisfy his summary judgment

burden of pointing to specific facts that are sufficient to

establish a prima facie case of disparate treatment based on

differing treatment of non-Muslim NARA employees.

B. Murray, Beyond Speculation, Fails 

To Point To Any Evidence Of Discrimination

Second, even apart from his failure to adduce any

evidence of differing treatment, Murray has altogether

failed to point to any evidence that could support an

inference, and a prima facie case, that NARA managers, in

terminating his employment, discriminated against him based

on his religion. Murray apparently concedes that his case
 See, e.g., Bailey v. Principi, 2003 WL 22245100, at *2, 31

6 (E.D. Pa. Aug. 20, 2003) (recognizing that “[a] plaintiff

cannot avert summary judgment with speculation,” and stating that

“Plaintiff correctly contends that he is not required to

establish that he was treated differently than non-minority

employees, but can rely on other evidence of discrimination[,]” .

. . “[h]owever, the plaintiff still must demonstrate the

existence of sufficient facts to allow him to prove by a

preponderance of the evidence that a prima facie case of

discrimination exists that goes beyond the plaintiff’s mere

speculation”) (citation omitted); cf. Pivirotto v. Innovative

Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) (recognizing that a

gender discrimination plaintiff can meet prima facie burden with

general evidence of discrimination -- that is, without

specifically demonstrating that employees outside of her class

were treated more favorably). 

41

depends not upon evidence but upon his mere speculation of

discrimination. See infra, pages 41-42. Such speculation

and subjective views are, however, inadequate to survive

summary judgment.31

The solely subjective basis for Murray’s case

became fully evident at his deposition. He admitted that

neither Mr. McEvoy, Mr. Roland, nor anyone else in

management ever stated anything orally or in writing to him

suggestive of a prejudice against Muslims. Exhibit “1,” at

212-213; 216-217. He further testified that he has leveled

his chief allegation in this case -- that management, based

on his religion, terminated him for making threatening

remarks -- only because he can think of no other reason why
 Exhibit “1,” at 205-06; 212 (Murray also stating his 32

subjective belief that management took his remarks “more

seriously because [they were made by] a person of the Islamic

religion”). See generally Bullock v. Children’s Hosp. of Phila.,

71 F. Supp. 2d 482, 490-91 (E.D. Pa. 1999) (granting employer

summary judgment on claim of discriminatory termination where

plaintiff merely speculated that there was discrimination based

on race “because she could not figure out any other reason that

[the employer] would have criticized her job performance,” and

holding that plaintiff therefore failed to establish prima facie

case). 

42

he was not permitted to make an oral statement in his

defense. He therefore was merely “speculat[ing]” that there

was such a religious basis. Undercutting his own 32

speculation, Murray acknowledged that the September 24, 2004

notice of proposed removal invited him to make a written

response and that the only response that he chose to make

was by way of his union representative’s October 2004 letter

to Mr. Roland. Exhibit “1,” at 202-210. 

Turning to the September 2004 charge of

insubordination, Murray does not contend that it was based

on religious discrimination. He conjectures only that there

may have been a religion-based discriminatory aspect to the

underlying August 17, 2004 directive because some of his

August 17, 2004 postings stated, in Arabic, that “God is

great.” Exhibit “1,” at 126-27; 143-144 (acknowledging that
43

he was nonetheless never disciplined for the pre-August 2004

postings because he removed them on August 17, 2004 in

compliance with the NARA directive). In the end, however,

he concludes that his religion did not play a primary role

in any of management’s decisions regarding his postings. In

his view, these decisions were, instead, primarily based

upon Director McEvoy’s and non-manager Buffone’s personal

dislike of him (Murray) and consequent desire to harass him. 

Id. at 143-144.

Even as Murray describes his claim, therefore, he

fails to articulate, let alone support by pointing to

probative evidence, a non-speculative, prima facie case of

religious discrimination that can survive summary judgment.

C. Murray’s Attack On NARA’s Business Decision

To Terminate Him, Which Was Based On

Legitimate And Non-Discriminatory Reasons

And Procedures, Does Not Save His Claim

Third, Murray’s theory of his case -- that there

must have been religious discrimination because, he says,

the government’s investigation was not sufficiently thorough

and did not sufficiently account for his explanations of

conduct, and because NARA could have chosen a lesser penalty

than termination -- encounters an insurmountable legal
44

obstacle because it is the sort of attack on employer

decision-making that our Court of Appeals has forbidden. It

is now well-established that the purpose of Title VII is to

police employment discrimination, not to micro-manage an

employer’s conduct of its business. In short, as this Court

and our Court of Appeals have recognized, 

an employer is not liable under Title VII

for terminating an employee based on the

belief that the employee was

insubordinate or otherwise acted

improperly even if that belief is

incorrect or the investigation itself was

flawed. The key inquiry remains `whether

discriminatory animus motivated the

employer,’ and [p]laintiff has presented

no evidence of discriminatory intent or

motive on the part of [d]efendant in

either its initiation or completion of

its investigation into his . . .

misconduct. 

Bailey, 2003 WL 22245100, at *6-7 (citing Fuentes v.

Perskie, 32 F.3d 759, 765 (3d Cir. 1994)); see also Fuentes,

32 F.3d at 765 (reasoning that it is insufficient for a

plaintiff “simply [to] show that the employer’s decision was

wrong or mistaken” because Title VII is not concerned with

“whether the employer is wise, shrewd, prudent, or
45

competent”); accord Harp v. SEPTA, 2006 WL 1517390, at *4

(E.D. Pa. May 31, 2006) (Shapiro, J.). 

Here, the summary judgment record is replete with

evidence that NARA had nondiscriminatory, well-discerned,

and well-founded business reasons for terminating Murray for

his insubordination and threatening remarks, which were of

legitimately serious concern to NARA, and which were fully

articulated in the agency’s notice of final decision. The

Philadelphia-based NARA managers that are the focus of

Murray’s claim, Messrs. McEvoy and Roland, far from acting

on their own regarding Murray’s conduct and removal in 2004,

were throughout that period under the active direction of

headquarters-based NARA Human Resources Specialist Joan

Janshego. It was Janshego, not McEvoy or Roland, who

drafted the August 17, 2004 directive, the September 16,

2004 letter, the notice of proposed removal, and the final

removal notice. In doing so, she adhered to nationally

applicable NARA standards and guidances, including NARA’s

Interim Guidance on Violence in the Workplace, NARA’s

Guidance on Adverse Actions and Discipline, and NARA’s

Penalty Guide.
 Murray seems to contend, for example, that Mr. McEvoy as 33

proposing official and Mr. Roland as deciding official: (1) did

not understand that some of his September 16, 2004 postings were

not disparaging comments but were, rather, book titles; 

(2) misinterpreted his “Predator” postings; and (3) did not

appreciate that his September 22, 2004 parking lot remarks were

meant as a joke and/or were stated in confidence to Security

Officer Hughes. 

 See Fuentes, 32 F.3d at 764 (stressing that, to “defeat 34

summary judgment . . . the plaintiff must point to some evidence

. . . from which a factfinder could reasonably either (1)

disbelieve the employer’s articulated legitimate reasons; or (2)

46

Even if for the sake of argument, however, and

contrary to the record evidence, it were the case that NARA,

in deciding to terminate Murray, did not properly apply its

penalty guide or ascertain properly all of the relevant

facts or reach correct conclusions, still Murray could not 33

-- and cannot -- satisfy his summary judgment burden. As

the Court of Appeals emphasized in Fuentes, it is

insufficient for a plaintiff who wishes to survive summary

judgment on a Title VII discrimination claim “simply [to]

show that the employer’s decision was wrong or mistaken.” 

In short, Murray’s claim fails as a matter of law because he

points to no evidence either that NARA terminated him for

reasons other than those that it identified in its removal

notices or that discriminatory animus was a motivating or

determinative cause of the decision to terminate him. 

34
believe that an invidious discriminatory reason was more likely

than not a motivating or determinative cause of the employer’s

action”); accord Harp v. SEPTA, 2006 WL 1517390, at *3 (E.D.

Pa. May 31, 2006) (Shapiro, J.). 

47

D. No Reasonable Factfinder Could Conclude That

NARA’s Articulated Reasons For Terminating 

Murray Were So Implausible That They Must 

Have Been A Pretext For Discrimination

Fourth and finally, as our Court of Appeals

emphasized in Smith v. Borough of Wilkinsburg, 147 F.3d 272

(3d Cir. 1998), it remains, at all times, the plaintiff’s

ultimate burden of proof to show that intentional

discrimination was a determinative factor in the adverse

employment decision. 147 F.3d at 278. To meet this burden,

as the en banc Court of Appeals stated in Sheridan v. E.I.

DuPont de Nemours and Company, 100 F.3d 1061 (3d Cir. 1996):

[T]he plaintiff [must] cast sufficient

doubt upon the employer’s proffered

reasons to permit a reasonable factfinder

to conclude that the reasons are

incredible[.]

100 F.3d at 1072 (emphasis added).

These principles were re-enforced in Reeves v.

Sanderson Plumbing Prod. Inc., 533 U.S. 130 (2000), in which

the Supreme Court wrote that even though a plaintiff has met

his prima facie burden and cast doubt on the bona fides of
 Post-Reeves, most circuits have endorsed the use of 35

either Rule 50 or Rule 56 to dismiss Title VII cases. See, e.g.,

Schnabel v. Abramson, 232 F.3d 83, 89 (2d Cir. 2000).

 The record bears out that NARA managers were genuinely 36

concerned about security after Murray’s parking lot remarks. 

Director McEvoy immediately called FPS. Then, following and

because of Murray’s remarks, McEvoy instituted new requirements

that: (i) the Federal Records Center be shut down on weekdays at

48

the employer’s explanation -- a situation that the

government respectfully submits does not exist here -- there

will nonetheless be instances in which 

no rational factfinder could conclude

that the action was discriminatory. For

instance . . . if the plaintiff created

only a weak issue of fact as to whether

the employer’s reason was untrue and

there was abundant and uncontroverted

independent evidence that no

discrimination had occurred, [defendant

would be entitled to judgment as a matter

of law]. 

 Id. at 148 (interpolation added).35

This is the case here. The government

respectfully suggests that NARA had good, sufficient, and

perfectly legitimate business reasons for terminating Murray

and that the record does not contain even a scintilla of

evidence that, in light of the materials that Murray posted

and his conceded September 22, 2004 remarks, would cast

doubt on the bone fides of those reasons. To the extent 36
4:30 p.m., with all employees required by then to be out of the

facility; (ii) if employees now work on the weekend, a security

guard must be present. Exhibit “6,” at 5. According to Mr.

Roland, Murray’s remarks caused Philadelphia-based NARA

facilities to heighten security because of “fear of reprisal on

[Murray’s] part.” Exhibit “5,” at 3. Soon after the incident,

efforts were underway to install a better security fence at the

Federal Records Center and to purchase metal detectors and more

sophisticated security measures. Id.; see generally Exhibit “9”

(J. Hughes EEO Affidavit), at 4-5 (noting new security measures

after incident).

49

that Murray is contending that if he were non-Muslim he

would not have been removed, he is merely conjecturing,

without any sufficient basis in the record upon which a

reasonable factfinder could agree with him. See Harp v.

SEPTA, 2006 WL 1517390, at *4 (E.D. Pa. May 31, 2006)

(Shapiro, J.) (stating that “a plaintiff’s pretext rebuttal

is insufficient if it is not supported by evidence, and is

based on nothing more than plaintiff’s personal opinion of

her employer’s proffered reason”) (citations omitted). 

Murray in fact agrees that it is appropriate for

federal employers to be increasingly vigilant regarding

security in the wake of September 11, 2001. Exhibit “1,” at

201-202. He acknowledges, moreover, that his comments to

Security Officer Hughes on September 22, 2004 -- which were

made minutes after he left his admittedly strange and
 See Fuentes, 32 F.3d at 765 (summary judgment warranted 37

where plaintiff fails to demonstrate such “weaknesses,

inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a

50

misleading phone messages for Director McEvoy and Ms.

Washington -- were inappropriate and could have had an

“alarming effect” on NARA management. Id. at 202-203. 

Indeed, he states that if he had been in Mr. Roland’s or Mr.

McEvoy’s shoes and had received a report from Security

Officer Hughes that an employee had made the comments that

Hughes reported had been made by Murray, he (Murray) “would

have done the same thing” that Roland and McEvoy did. Id.

at 202-203; 206-207. There is thus abundant and

uncontroverted evidence that no discrimination occurred, and

not only has Murray not created even a weak issue of fact,

he has created no issue of fact at all, as evidenced in part

by his admission that NARA managers acted appropriately

based on the facts that were presented to them.

In the last analysis, no reasonable factfinder

could conclude by a preponderance of the evidence that

NARA’s articulated reasons for terminating Murray were so

implausible that they must have been a pretext for

discrimination. Murray having failed to carry his summary 37
reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons”) (emphasis in original)

(citations, quotation marks, and brackets omitted); accord Harp

v. SEPTA, 2006 WL 1517390, at *4 (E.D. Pa. May 31, 2006)

(Shapiro, J.). 

51

judgment burden, summary judgment in favor of the government

is wholly warranted.
52

IV. CONCLUSION

The government respectfully submits that summary

judgment should be granted in its favor. 

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney

 

VIRGINIA A. GIBSON

Assistant United States Attorney

Chief, Civil Division

 GBS3408

GERALD B. SULLIVAN (PA#57300)

Assistant United States Attorney

615 Chestnut Street, Ste. 1250

Philadelphia, PA 19106-4476

(215) 861-8786

(215) 861-8349 (fax)