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WILSON v. MVM INC.

United States District Court, E.D. Pennsylvania


April 1, 2004.

JOHN WILSON, et al.
v.
MVM, INC., et al

The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge

MEMORANDUM

Plaintiff's, three former Court Security Officers ("CSOs"), challenge their discharge for failure to meet the medical standards that were established by the Judicial Conference of the United States and implemented by the United States Marshals Service ("USMS").

Before the court is the motion of defendants USMS, the Judicial Conference of the United States and the United States Department of Justice (collectively, the "federal defendants") to dismiss the complaint for failure to state a claim upon which relief can be granted and also, with respect to certain claims, for lack of subject matter jurisdiction. Defendant MVM, Inc. ("MVM") has filed a motion to dismiss in part or, in the alternative, for partial summary judgment.

  I.

  In considering a motion to dismiss for failure to state a claim, we accept all well-pleaded facts as true. In re Rockefeller Ctr. Props. Sees. Litig., 311 F.3d 198, 215 (2002). We may also consider "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994).

  According to the complaint, plaintiffs John Wilson, Donald Jones, and Frank Kryjer began work as either detention officers or CSOs in 1991, 1984, and 1997, respectively. They were originally hired by the USMS or a contractor of the USMS. By 1997, all of the plaintiffs held the position of CSO. In this capacity, the plaintiffs helped protect and secure federal courthouses and buildings in the Eastern District of Pennsylvania.

  On August 31, 2001, the USMS entered into an agreement with MVM for security services in the various judicial facilities of the Third Circuit, which encompasses Delaware, New Jersey, Pennsylvania, and the Virgin Islands. In the words of the complaint, "[p]laintiffs all became employees of Defendant MVM, Inc." Compl. ¶ 12. A collective bargaining agreement between MVM and the plaintiffs' labor union, United Government Security Officers of America, governed certain terms of plaintiffs' employment.*fn1 The Judicial Conference of the United States*fn2 establishes policies for the federal courts. See 28 U.S.C. § 331. In January 2001, after reviewing an analysis of the CSO job function by the United States Health Service, the Judicial Conference adopted a new set of medical standards for CSOs. The USMS, pursuant to a Judicial Conference directive, adopted a new protocol for the physical examination of CSOs and advised MVM that its CSO employees were required to undergo examinations in conformity therewith.

  Each of the plaintiffs was examined under the updated standards. Between April 26, 2002 and May 8, 2002, the USMS notified MVM that each of the three was not medically qualified for the CSO position. Plaintiff Wilson was disqualified because of a cardiac condition as well as diabetes. Wilson maintains that he had diabetes throughout his eleven years working as a CSO. Plaintiff Jones did not receive a medical clearance because he uses a hearing aid, a device he has worn for ten years. Plaintiff Kryjer also failed the medical examination because a physician determined that he suffered from hearing loss and was required to use a hearing aid. MVM subsequently terminated each plaintiff: Wilson on April 29, 2002, Jones on May 11, 2002, and Kryjer on May 6, 2002. Plaintiff's allege that due to their termination as CSOs the defendants have violated: (1) their right to equal protection under the Fifth Amendment*fn3; (2) their right to substantive due process under the Fifth Amendment; (3) their right to procedural due process under the Fifth Amendment; (4) the Rehabilitation Act of 1973; (5) the Americans with Disabilities Act ("ADA"); (6) the Age Discrimination in Employment Act ("ADEA"); (7) their right to be free from retaliation under the ADEA and the Pennsylvania Human Relations Act ("PHRA"); (8) their right to be free from intentional age discrimination under the ADEA and the PHRA; (9) provisions of the Plaintiff's' employment contracts; and (10) tort law prohibiting concert of action and interference with contractual relations.

  As noted above, the federal defendants have filed a motion to dismiss, and MVM has filed a motion to dismiss in part and for partial summary judgment. We may only grant a motion to dismiss for failure to state a claim if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

  II.

  We begin with plaintiffs' claims under § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791. This statute "prohibits discrimination on the basis of disability in employment decisions by the Federal Government." Lane v. Pena, 518 U.S. 187, 193 (1996).

  The federal defendants move to dismiss the Rehabilitation Act claims against them on the grounds that they did not have an employment relationship with the plaintiffs. Although the plaintiffs insist that they should be considered "federal employees," this contention contradicts the language used in the complaint. Indeed, the complaint declares that "CSOs are employed by private security companies, which contract for the providing of security services for the United States District Courts." Compl. ¶ 18. The plaintiffs also concede that MVM, not any of the federal defendants, is the "employer" of the CSOs. Compl. ¶ 25.

  Absent some indication in a statute to the contrary, the Supreme Court has determined that Congress uses the word "employee" and related words according to their common law meaning. Cmty. for Creative Non-violence v. Reid, 490 U.S. 730, 751-52 (1989). When a question arises as to whether a person is an employee or an independent contractor, a court must decide it consistent with the common law principles of agency. Id. In Reid, the Supreme Court outlined thirteen factors to be evaluated:

In determining whether a hired party is an employee under the general common law of agency, we consider [1] the hiring party's right to control the manner and means by which the product is accomplished. Among other factors relevant to this inquiry are [2] the skills required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.
Id. (footnotes and citation omitted; bracketed numbers added). Under this test, there is "no shorthand formula or magic phrase that can be applied to find the answer . . . [A]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 (1992) (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968)).

  The contract between the USMS and MVM essentially requires that MVM provide security officers at the various judicial buildings of the Third Circuit. MVM is required to "provide all management, supervision, manpower, material, supplies, and equipment, except as otherwise provided, and shall plan, schedule, coordinate, and assure effective performance of security services at the place of performance in accordance with the terms, conditions and statement of work contained herein." CSO Contract § B-1(a). Under the contract MVM supplies the services of a Contract Manager, one or more Site Supervisors, Lead CSOs, and CSOs. The persons MVM hires for each of these roles have certain duties. The Contract Manager is responsible for the "administration and technical supervision of all Contractor employees," and "serve[s] as the single point of contact through which all Contractor/Government communications, work, and technical direction shall flow, except in cases of an emergency." Id. § C-5(a). Site Supervisors are to make periodic visits to certain CSO sites to "oversee and manage the day-to-day operations of the CSO workforce at their respective district." Id. § C-5(b)(1). Lead CSOs "provide a direct degree of supervision for the daily work of the CSOs," and also "function simultaneously as . . . full-time working CSO[s]." Id. § C-5(c). Finally, CSOs have the basic duty of "provid[ing] for the complete safety and security of judges, court personnel, jurors, witnesses, defendants, federal property and the public." Id. § C-5(d)(1). The contract further enumerates the specific duties of CSOs, which include entrance control, patrolling court facilities, standing stationary posts, escorting judges and court personnel, and securing courtrooms. Each year, CSOs must attend eight hours of training in areas such as "threat image/explosive device detection, handling unruly persons, emergency response training, and other sensitivity training associated with screening." Id. § C-7(c).

  Under the agreement between USMS and MVM, the USMS may disqualify any CSO if he or she fails to satisfy medical, physical, or weapons proficiency standards. In addition, the Contracting Officer's Technical Representative ("COTR"), an employee of the federal government, furnishes MVM with orders and standing operating procedures for each CSO station and routes and schedules for roving patrols. The COTR maintains a daily attendance log for CSOs reporting for duty, receives the written reports of CSOs, authorizes CSOs to use government-owned vehicles as necessary, and assigns specific court security duties to the CSOs. The COTR may also require MVM to make CSOs available for overtime work or travel to other judicial facilities.

  The first Reid factor compels us to consider "the hiring party's right to control the manner and means by which the product is accomplished." Reid, 490 U.S. at 751 (footnote omitted). The CSOs in question were continually under the direction and control of multiple layers of more senior MVM employees. MVM has the contractual responsibility to "plan, schedule, coordinate, and assure effective performance of security services at the place of performance in accordance with the terms, conditions and statement of work contained herein." CSO Contract § B-1(a). MVM provides at least eight hours of training to each of its CSOs every year. In addition, MVM is the entity that actually hired and subsequently terminated the plaintiffs.

  The fact that the CSOs are working pursuant to a highly detailed and exacting contract between MVM and the USMS does not signify that the government is controlling the "manner and means" by which the job is accomplished. "[B]y contract, the Government may fix specific and precise conditions to implement federal objectives. Although such regulations are aimed at assuring compliance with [federal] goals, the regulations do not convert the acts of entrepreneurs . . . into federal governmental acts." United States v. Orleans, 425 U.S. 807, 816 (1976) (footnote and citation omitted).

  While a COTR may interact with MVM's employees on a periodic basis, the COTR essentially serves as a point of contact between MVM and the Government and assures that MVM is complying with the terms of the contract. As the CSO contract notes, "[i]nspection, acceptance and evaluation of services to be furnished [by MVM] shall be performed by the COTR or his/her designee." § E-1(a). The common law — the foundation of the multifactor test for agency outlined in Reid — has long recognized that hiring parties may have representatives who oversee the work of independent contractors, without transforming the independent contractors into "employees" of the hiring party. For example:

The law of Pennsylvania makes it clear that one who employs an independent contractor may also employ a person to ascertain that the work is done according to plans and specifications and that the employment of such a person in no way indicates that the independent contractor is being subjected to control. Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963); Townsend v. City of Pittsburgh, 383 Pa. 453, 119 A.2d 227 (1956); Pennsylvania R. Co. v. Allegheny County, 324 Pa. 216, 188 A. 178 (1936). This is a corollary to the long recognized general right of inspection and supervision that an owner normally enjoys and exercises to insure his receiving from the contractor the benefit or total performance bargained for. In employing those men, the United States was only seeking to protect itself and to insure that the contractors were performing in the manner required of them under the contract. Gowdy v. United States, 412 F.2d 525, 529 (C.A. 6, 1969), cert. denied, 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425 1969; Roberson v. United States, 382 F.2d 714, 721 (C.A. 9, 1967).
Fisher v. United States, 441 F.2d 1288, 1291 (3d Cir. 1971) (footnote omitted).

  The second Reid factor involves the skills needed by the CSOs to perform their jobs. In Reid, the fact that the respondent was a sculptor, an occupation requiring specific skills, helped convince the Supreme Court that he was an independent contractor. In our case, the plaintiffs are members of a profession that requires special background, skill, and training. As the plaintiffs themselves note in the Complaint,

In or about 1983 the Court Security Program was formed for the purpose of establishing a federal court security system for the United States District Courts. Since its inception the program has sought and employed as its primary security work force retired law enforcement officers and military personnel as the program requires that all security personnel have a minimum of three years law enforcement experience. As such, an overwhelming majority of the CSOs are retired state and local law enforcement and military personnel.
Compl. ¶ 17 (emphasis added). Moreover, the "Training Standards" in the CSO contract mandate that individuals acting in that capacity have a specific type of education or training:
The Contractor shall ensure that each individual designated to perform as a CSO successfully completed or graduated from a certified federal, state, county, local or military law enforcement training academy or program that provided instruction on the use of police powers in an armed capacity while dealing with the general public. Certificates or diplomas must be recognized by federal, state, county, local or military authorities as certification that an individual is eligible for employment as a law enforcement officer. In addition, individuals with five years of military experience involving functions similar to those previously described may also be considered.
§ C-7(b).

  Under the third Reid factor, we must consider the source of the "instrumentalities and tools." The contract between USMS and MVM states that "[t]he Contractor shall provide all management, supervision, manpower, material, supplies, and equipment, except as otherwise provided." § B-1(a). MVM is required to supply its CSOs with uniforms.*fn4 MVM must also equip them "with supplementary items that are needed to perform their duties including, but not limited to, notebooks, pens, pencils, and log books." § C-12(d). However, the USMS is to furnish each CSO with a radio, weapon, oleoresin capsicum ("pepper") spray, ammunition, holster, magazine or cartridge case, handcuffs, handcuff case, pocket identification badges, and name tags. Thus, MVM and USMS share the duty of providing CSOs with the "instrumentalities and tools" necessary for the performance of their jobs.

  The fourth Reid factor is the location of the work. Here, it occurs at federal courthouses.

  The fifth factor involves the duration of the relationship between the parties. Each of the plaintiffs had been employed as a CSO at a federal facility for at least five years when MVM terminated them. The USMS contract with MVM was entered into on August 31, 2001.

  Under the sixth factor, we ask whether the USMS had the right to assign additional projects to the plaintiff CSOs. The contract between the USMS and MVM states that CSOs are required to control entrances to federal facilities, patrol court facilities, stand stationary posts, provide armed escort services or judges, jurors, and the like, apprehend suspects, provide security for certain judicial proceedings, and attend to the safety of courtrooms. The contract also states that CSOs "may be required at temporary or alternate locations," but adds that "[t]he general duties required of the CSO will not change, only the location where duties are to be performed." § C-14(a). Thus, although the contract cloaks the USMS with the flexibility of being able to assign specialized tasks to CSOs, none of these asks can be described as "additional" to or outside the scope of the contract. All of the duties that can be assigned to CSOs relate to the "scope of the work required [of CSOs] by this contract, which is to provide for the complete safety and security of judges, court personnel, jurors, witnesses, defendants, federal property and the public." CSO Contract § C-5(d)(1). No USMS officer, for example, has the right to compel one of the CSOs to run a personal errand.

  The seventh factor is "the extent of the hired party's discretion over when and how long to work." Reid, 490 U.S. at 751 (footnote omitted). In this case, the freedom that the CSOs have in scheduling their work is to some extent governed by Contract § C-5(d)(3):

The Contractor shall provide CSO coverage by using a combination of full-time positions and shared positions. Full-time positions are positions where the CSO is scheduled to fill that position for a 40-hour work week, 52 weeks per year, excluding holidays. Shared positions are also 40-hour work week positions that are filled by two (2) CSOs for a combined total of 40 hours per week. The Contractor shall use shared CSO positions to: (1) provide full staffing level coverage; (2) increase security levels as needed; and (3) avoid unnecessary overtime.
Under the contract, the COTR can require MVM to supply CSOs who will work overtime hours. Thus, neither MVM nor the plaintiff CSOs have the type of discretion over when and how long they work as the independent contractor did in Reid. There, the Supreme Court found that the sculptor "had absolute freedom to decide when and how long to work," because the only limitation placed upon him was a final deadline for the delivery of the sculpture. Reid at 753. Reid could theoretically have worked zero hours in one week and a hundred hours the following week if he so chose.

  Nonetheless, the contract between MVM and USMS does not control the hours of any specific CSO. The USMS could not tell CSOs Wilson, Kryjer, and Jones to work any particular days, hours, or shifts. Indeed, plaintiffs are not named in the contract between MVM and the USMS. The contract merely necessitates that MVM supply qualified CSOs for the established work shifts, irrespective of whether the CSOs were Wilson, Kryjer, Jones, or some other persons engaged by MVM. Although the COTR could have asked MVM to provide CSOs for "overtime hours," the plaintiffs could not be specifically targeted. The extent to which the plaintiffs were required to work overtime hours was ultimately determined by them and MVM. Thus, the USMS had no control over which CSO worked at any particular time.

  Under the eighth Reid factor, we consider the method by which the plaintiff CSOs were paid. The government pays MVM, not the CSOs themselves, on a monthly basis. MVM in turn pays the CSOs. In addition, MVM can only receive what is due under the contract after it has prepared and submitted a detailed invoice for the work its CSOs have performed.

  The ninth Reid factor concerns "the hired party's role in hiring and paying assistants." Reid at 751-52 (footnote omitted). MVM performs the actual hiring and paying of the CSOs. The USMS has nothing to do with formally engaging the services of an individual CSO and with paying his or her remuneration.

  The tenth factor focuses on "whether the work is part of the regular business of the hiring party." Id. at 752 (footnote omitted). Ensuring the security of government employees and the public at federal courthouses has traditionally been part of the regular business of the government.

  The eleventh factor asks whether the hiring party is "in business." Id. at 752. In Reid, the Supreme Court found that the petitioner, "a nonprofit unincorporated association dedicated to eliminating homelessness in America," was "not a business at all." Reid, 490 U.S. at 733, 753. In contrast, the government and its agencies have significant structure, with specific duties and responsibilities as defined by law.

  The twelfth factor compels us to look at who provides fringe benefits to those performing the work. There is nothing in the contract which places this obligation on the USMS. The CSOs received their benefits through arrangements with MVM.

  The thirteenth and final factor relates to the tax treatment of the CSOs. There is no allegation that either the USMS or any other agency of the federal government withholds taxes from the CSOs. Since the contract between MVM and USMS treats MVM to be an independent contractor, it seems clear that the CSOs identify MVM, and not the USMS, as their employer for tax purposes.

  No single factor in the Reid analysis is dispositive, and instead "all of the incidents of the relationship must be assessed and weighed." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 (1992) (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968)). A weighing of all thirteen factors convinces us that MVM and thus the plaintiffs were independent contractors with respect to the USMS and the federal government. The USMS specifically contracted with MVM, a private company which is recognized by agreement to be an independent contractor of the federal government. The USMS did not hire the plaintiffs, did not pay them a salary or withhold taxes, and did not provide them with benefits. Instead, it paid MVM monthly upon receiving MVM's invoice. While it had some supervisory role, the USMS did not decide which CSO was going to work or when he or she was going to work. Moreover, the CSOs are to be highly skilled. It is true that the USMS requires the CSOs to meet certain levels of hearing and physical fitness and can disqualify them for failure to meet those levels. Nonetheless, this type of contractual provision does not militate against a finding that MVM and plaintiffs were independent contractors vis a vis the federal government. See Fischer v. United States, 441 F.2d 1288, 1291 (3d Cir. 1971). Finally, the plaintiffs identify themselves in the complaint as employees of MVM and are part of a Union which has entered into a Collective Bargaining Agreement with MVM, not with the USMS or any other agency of the federal government.

  In sum, the plaintiffs are employees of MVM. The relationship of MVM and the plaintiffs to the federal government is one of independent contractor. Consequently, we will grant the motion of the federal defendants to dismiss the plaintiffs' Rehabilitation Act counts for failure to state a claim since plaintiffs are not employees of the federal defendants.

  Plaintiff's concede that their Rehabilitation Act claim against MVM should be dismissed.

  III.

  A.

  As we have noted, the Plaintiff's have brought a number of constitutional claims against the federal defendants. The federal defendants argue that, as agencies of the United States, they have not waived sovereign immunity for actions brought under the Constitution for which plaintiffs seek monetary damages. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994). Plaintiff's do not dispute this point. Waiver of sovereign immunity is a prerequisite to subject matter jurisdiction. Up State Fed. Credit Union v. Walker, 198 F.3d 372, 374 (2d Cir. 1999). Therefore, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, we will grant the federal defendants' motion to dismiss plaintiffs' equal protection and due process claims against them to the extent that monetary damages are requested.

  B.

  The plaintiffs, however, are also asking for declaratory and prospective injunctive relief associated with their claims for equal protection and for denial of due process. See Bowen v. Massachusetts, 487 U.S. 879 (1988). Plaintiff's' complaint may be fairly read as alleging that they were denied equal protection on the basis of both age and disability.

  The Supreme Court has determined that discrimination on the basis of age is reviewed only for rationality. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000). Furthermore, the Court has noted that "when conducting rational basis review `we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government's] actions were irrational.'" Id. (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979) (alteration in original)). Under this standard, the Supreme Court upheld a state law requiring that police officers retire at the age of 50, because the state legislature had adopted the cutoff to "assur[e] physical preparedness of its uniformed police." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam) (footnote omitted). "That the State chooses not to determine fitness more precisely through individualized testing after age 50 [does not prove] that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation." Id. at 316.

  Even if we assume that the federal defendants have discriminated against the plaintiffs on the basis of age, they have no actionable equal protection claim. The CSOs have responsibility to provide security for various federal courthouses in the Third Circuit. Age and physical fitness to do the job are inextricably related. It is an unfortunate reality that physical fitness declines with age. As in Murqia, we cannot say that "the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation."

  Discrimination on the basis of disability also receives a rational basis review under the Supreme Court's equal protection jurisprudence. Bd. of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 366-67 (2001). Assuming that the USMS discriminated against the plaintiffs on the basis of disability, there would be an obvious, rational explanation for such differential treatment. Again, the USMS could rationally conclude that CSOs with physical and medical impairments would undermine effective security at the federal courthouses. In conclusion, the plaintiffs' claims for declaratory and injunctive relief against the federal defendants for violation of equal protection must be dismissed for failure to state a claim upon which relief can be granted.

  MVM has withdrawn its motion to dismiss the equal protection claims made against it. Plaintiffs' procedural due process claims against the federal defendants may proceed only if the plaintiffs alleged they were deprived of a constitutionally-protected liberty or property interest. See Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). No denial of a liberty interest is pleaded.*fn5 Therefore, the plaintiffs' procedural due process claims against the federal defendants hinge on whether they have a property interest in continuing as CSOs. As our Court of Appeals has stated in Robb v. Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984) (quoting Roth, 408 U.S. at 577):

[p]roperty interests are not generally created by the Constitution. "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."
Robb, 733 F.2d at 292.

  The Supreme Court explained in Roth, 408 U.S. at 577, that not every hope or anticipation rises to the level of a property interest:

  To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Plaintiffs have failed to explain how they have derived a "legitimate claim" to continued entitlement to work as CSOs at federal buildings. Although it is true that the collective bargaining agreement between the plaintiffs' union and MVM assures the right to grieve a termination by MVM, this contract cannot impose obligations on any of the federal defendants, which are not parties to it. The individual plaintiffs, of course, were never signatories to the contract between USMS and MVM and do not assert that they are third party beneficiaries.

  To the extent that we do consider the contract between MVM and the USMS, it does not grant the plaintiffs a "right" to continue as CSOs regardless of physical and medical condition. To the contrary, the contract specifies that prospective and current CSOs must undergo medical examinations with doctors that have been approved by the USMS, and that failure to pass the tests will "disqualify any [MVM] employee for . . . continuation under the contract." § C-8(e). The contract similarly goes on to provide that "[a]ny employee provided by [MVM] that fails to meet the requirements of the Contract, including but not limited to, the terms, conditions, performance, medical, and physical standards . . . may be removed from performing services for the Government under this Contract upon written request of the Contracting Officer." § H-3(a) (emphasis supplied). In a section entitled "Removal of CSOs and Other Contractor Personnel," the contract is clear that CSOs have no continuing right to provide security in federal facilities: The United States Marshals Service reserves the right at all times to determine the suitability of any Contractor employee to serve as a CSO. Decisions rendered under any dispute resolution process, including assisted settlement, negotiation, consultation, mediation, mini trials, arbitration or any other process available to the contractor and its employees shall not be binding upon the United States Marshals Service. Any decision to continue a Contractor employee in a CSO capacity will be made solely by the Judicial Protective Services Program on a case-by-case basis in accordance with the requirement to safeguard the federal judicial process, the Judiciary, citizens, and property as per policies and directives governing Judicial Protective Services operations.

 CSO Contract § H-3(b). Significantly, the contract simply gives the USMS the right to prevent those who are not physically fit from working as CSOs at the various federal facilities. It does not require MVM to discharge them from its employment.

  Plaintiff's' allegation that the USMS "unilaterally modif[ied] its contract[] with MVM" and required "full compliance with new medical standards" does not alter our analysis. Compl. ¶ 23. The original contract between MVM and the USMS states that "[t]he government reserves the right to incorporate revised medical qualifications at a later date." Contract § C-8(f). To be sure, the government did revise the medical qualifications on its own, but this was its prerogative under the contract.

  It is critically important for the security of the federal courts that its gatekeepers be physically fit. Especially since September 11, 2001, the physical fitness of those protecting federal facilities is of paramount concern. A determination by the government that a security officer is incapable of maintaining the proper level of security should not be lightly second-guessed. The Supreme Court has noted that "[i]t should be obvious that no one has a `right' to a security clearance." Dep't of the Navy v. Egan, 484 U.S. 518, 528 (1988); see Beesley v. Dep't of Justice, No. 97-6499, slip op. at 20 (C.D. Cal. Jan. 18, 2000), aff'd, 26 Fed. Appx. 759 (9th Cir. 2002). We need not decide whether the physical fitness of a security officer rises to the same level as a security clearance. Suffice it to say that the plaintiffs here do not have a property interest in continuing to work as CSOs in federal facilities where they are independent contractors under a contract between USMS and MVM. Thus, they have no claim against the federal defendants for a violation of their procedural due process right. See Roth at 578; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). The motion of the federal defendants to dismiss plaintiffs' claims for injunctive relief under the constitutional theories will be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

  Defendant MVM has withdrawn its motion to dismiss the plaintiffs' procedural due process claims against it.

  The federal defendants also move to dismiss the plaintiffs' substantive due process claim. Our Court of Appeals has determined that "when a plaintiff challenges a non-legislative state action (such as an adverse employment decision), we must look, as a threshold matter, at whether the property interest being deprived is `fundamental' under the Constitution. . . . If the interest is not `fundamental,' . . . the governmental action is entirely outside the ambit of substantive process." Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 142 (3d Cir. 2000). Here, the plaintiffs have not asserted that they have been deprived of any right that the Supreme Court has determined to be "fundamental," such as the right to marry, to direct the upbringing of one's children, to marital privacy, and to bodily integrity. Washington v. Glucksberq, 521 U.S. 702, 720 (1997). Furthermore, even if we were to assume that the plaintiffs had obtained a property right to continue working as CSOs at federal judicial facilities, such a right is not deemed to be "fundamental." Recently, our Court of Appeals addressed this exact question:

We turn to whether [the plaintiff's] tenured public employment is a fundamental property interest entitled to substantive due process protection. We hold that it is not, and thereby join the great majority of courts of appeals that have addressed this issue.
Nicholas, 227 F.3d at 142 (citations omitted). In sum, we shall dismiss for failure to state a claim on which relief can be granted the plaintiffs' substantive due process claims for injunctive relief against the federal defendants.

  Defendant MVM has withdrawn its motion to dismiss the plaintiffs' substantive due process claims against it.

  IV.

  The federal defendants seek dismissal of plaintiffs' claims under the Americans with Disabilities Act ("ADA") on the ground that the ADA does not apply to any agency or branch of the federal government. See 42 U.S.C. § 12111(5)(B)(i). Plaintiffs concede the point. Therefore, the ADA claims will be dismissed for lack of subject matter jurisdiction as to the federal defendants. See Krumel v. City of Fremont, No. 8:01CV259, 2002 WL 808633, at *1 (D. Neb. Jan. 2, 2002).

  V.

  Plaintiffs bring claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., against the federal defendants and MVM. The ADEA provides in relevant part that "[i]t shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The federal defendants move to dismiss this claim for failure to state a claim upon which relief can be granted because the plaintiffs were not employees of the federal government. We agree for the reasons previously explained.

  MVM moves to dismiss the ADEA claims against it to the extent that the plaintiffs make a claim for disparate impact under the ADEA. While our Court of Appeals has not had the opportunity to directly address this question, it has noted that "[i]t is doubtful that traditional disparate impact theory is a viable theory of liability under the ADEA." DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 732-34 (3d Cir. 1995). Although there is no binding precedent in this Circuit, we agree with Judge Padova's opinion in Duffy v. Halter, Civ.A. No. 99-3154, 2001 WL 253828 (E.D. Pa. Mar. 13, 2001) that a claim for disparate impact is not cognizable under the ADEA. First, as Judge Padova observed, the Supreme Court's discussion in Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993) suggests that the ADEA was not meant to deal with disparate impact claims. Duffy at *3. Moreover, a plaintiff in an age discrimination suit in our circuit must show by a preponderance of the evidence that age was the "determinative factor" in the employment decision in issue. Billet v. Cigna Corp., 940 F.2d 812, 816 (3d Cir. 1991) (citing Bartek v. Urban Redevelopment Auth. of Pittsburgh, 882 F.2d 739, 742 (3d Cir. 1989)); Duffy at *4. The test of whether age was the "determinative factor" ultimately turns on the employer's motivation or intent. Martincic v. Urban Redevelopment Auth., 844 F. Supp. 1073, 1077 (W.P. Pa. 1994); Duffy at *5. We do not think that a disparate impact age discrimination case can be upheld, because "[p]roof of discriminatory motive . . . is not required under a disparate-impact theory." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36, n.15 (1977); Puffy at *5. In addition, "legislative history also suggests that APEA claims are more properly expressed in terms of allegations of disparate treatment." Puffy at *5 (citing Martincic, 844 F. Supp. at 1078 and Mullin v. Raytheon Co., 164 F.3d 696, 703 (1st Cir. 1999)). Finally, the language of § 623(f)(1) of the APEA creates an exception to employer liability if the allegedly unlawful employment action is "based on reasonable factors other than age." 29 U.S.C. § 623(f)(1). See Smith v. City of Jackson, 351 F.3d 183 (5th Cir. 2003), cert. granted, 72 U.S.L.W. 3539 (U.S. Mar. 29, 2004) (No. 03-1160). Notably, such a provision does not exist in Title VII, which does allow disparate impact claims. Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971). Thus, "the exception appears to serve as a safe harbor for employers who can demonstrate that they based their employment action on a reasonable non-age factor, even if the decision leads to an age-disparate result." Smith, 351 F.3d at 189. We conclude that we must dismiss plaintiffs' ADEA claims against MVM to the extent that these claims are brought under a disparate impact theory.

  VI.

  We next turn to the plaintiffs' separate claims for retaliation brought against all defendants under the ADEA and the Pennsylvania Human Relations Act ("PHRA"). As we have indicated, plaintiffs' ADEA claims against the federal defendants shall be dismissed. Furthermore, the plaintiffs acknowledge that any claim against the federal defendants based on the PHRA must be dismissed for lack of subject matter jurisdiction because the federal government has not waived sovereign immunity with respect to state anti-discrimination laws. See Pep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999).

  MVM asserts that the plaintiffs' claims brought under the PHRA must be dismissed because none of the plaintiffs exhausted his administrative remedies prior to filing the current suit. See Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997); Davies v. Polvscience, Inc., 126 F. Supp.2d 391, 393 (E.D. Pa. 2001). Furthermore, MVM argues that the plaintiffs are now time-barred from pursuing the administrative remedies that are a prerequisite to a PHRA claim. MVM also contends that to sustain their claim the plaintiffs were required to file an administrative charge with the Pennsylvania Human Relations Commission ("PHRC") within 180 days of their terminations. Pa. Stat. Ann. tit. 43, § 959(h); Zysk v. FFE Minerals USA, Inc., 225 F. Supp.2d 482, 492-93 (E.D. Pa. 2001).

  Plaintiffs' complaint does not aver that they filed administrative charges with the PHRC, nor does it indicate that they requested that their Equal Employment Opportunity Commission ("EEOC") charges be cross-filed with the PHRC. Moreover, the plaintiffs have entirely failed to respond to MVM's motion to dismiss the PHRA claims. We will therefore grant MVM's motion to dismiss any PHRA claims against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Richards v. Foulke Assocs., Inc., 151 F. Supp.2d 610 (E.D. Pa. 2001).

  The plaintiffs have also brought retaliation claims against MVM under the ADEA. MVM asserts that the outstanding retaliation claims against it must be dismissed because the plaintiffs have not established a prima facie case of retaliation by MVM. In order to make a case of retaliation, a plaintiff must show (1) protected activity by the employee; (2) adverse action by the employer after or contemporaneous with the protected activity; and (3) a causal connection between the protected activity and the adverse action. Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002); Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3d Cir. 1995).

  The only arguably "adverse" actions alleged in the complaint are the plaintiffs' terminations on April 29, 2002, May 6, 2002, and May 11, 2002. The only activity which might be considered "protected" is the plaintiffs' filing of charges with the EEOC on July 29, 2002. Because the "protected activity" took place after the "adverse" action, the plaintiffs cannot established a prima facie case for retaliation. We will grant the motion of MVM to dismiss plaintiffs' retaliation claims under the ADEA.

  VII.

  Plaintiffs have also brought additional claims against all defendants for intentional discrimination pursuant to the ADEA and the PHRA. Plaintiffs' ADEA claims against the federal defendants will be dismissed for reasons set forth above. Plaintiffs' PHRA claims against the federal defendants will also be dismissed by agreement of the parties. Furthermore, as we have previously determined, the plaintiffs' PHRA claims against MVM will be dismissed. MVM has not moved to dismiss the ADEA disparate treatment claims against it. VIII.

  The federal defendants also seek dismissal of plaintiffs' breach of contract claims.

  It is clear that any contract claim that the plaintiffs would have against the federal defendants would exceed $10,000. However, as the federal defendants have noted, such claims are within the exclusive jurisdiction of the Court of Federal Claims. See 28 U.S.C. § 1346, 1491. Therefore, we shall dismiss for lack of subject matter jurisdiction the plaintiffs' contract claims against the federal defendants.

  MVM moves to dismiss only the breach of contract claim by plaintiff Jones. MVM points out that under the collective bargaining agreement ("CBA") applicable to Wilson, Kryjer, and Jones, "[MVM] shall have the right to discharge, discipline, or suspend an employee for just cause." CBA, Art. 9 § A. The CBA provides for grievance and arbitration procedures for employees who believe that they were terminated without just cause. Grievances are defined broadly, as "any dispute concerning the application or interpretation of this Agreement, or any dispute concerning wages, hours, or working conditions of employees covered by this Agreement." CBA, Art. 10 § A. MVM asserts that Wilson and Kryjer did file grievances regarding their terminations, but plaintiff Jones did not.

  Before an employee can bring a wrongful discharge claim against an employer, he must exhaust any grievance or arbitration remedies provided in the employment agreement. Long v. Int'l Union of Elec., Radio, & Machine Workers Local, 141, 544 F. Supp. 1375, 1382 (E.D. Pa. 1982). MVM presents an undisputed affidavit from a senior MVM employee indicating that Jones did not file a grievance with the company. Because there is no genuine issue as to any material fact, MVM is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Therefore, we will grant summary judgment in favor of MVM with respect to the contract claim of plaintiff Jones.

  IX.

  Finally, the federal defendants move to dismiss the concert of action and interference with contractual relationsclaims against them. They make several arguments. First, since the plaintiffs purportedly failed to exhaust their administrative remedies, they do not meet the jurisdictional prerequisites of the Federal Torts Claims Act. Second, even if the plaintiffs had exhausted their administrative remedies, the federal defendants have not waived sovereign immunity for claims arising out of "interference with contract rights." 28 U.S.C. § 2680(h). Third, the plaintiffs cannot maintain these tort actions because they did not name the United States as a defendant. The plaintiffs fail to address any of these arguments. We will therefore grant the unopposed motion of the federal defendants to dismiss plaintiffs' tort claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. ORDER

  AND NOW, this day of April, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:

  (1) the motion of the United States Marshals Service, the Judicial Conference of the United States, and the United States Department of Justice (collectively "the federal defendants") to dismiss the following Counts of the Complaint for failure to state a claim is GRANTED:

 

(a) Counts I, II, III, XI, XII, XIII, XXI, XXII, and XXIII to the extent that they seek injunctive and declaratory relief;
(b) Counts IV, VI, XIV, XVI, XXIV, and XXV (incorrectly denominated as Count XXVI in the complaint); and
  (c) Counts VII, VIII, XVII, XVIII, XXVII, XXVIII to the extent that they are brought under the Age Discrimination in Employment Act; (2) the motion of the federal defendants to dismiss the following Counts of the Complaint for lack of subject matter jurisdiction is GRANTED:

 

(a) Counts I, II, III, XI, XII, XIII, XXI, XXII, and XXIII to the extent that they seek money damages;
(b) Counts V, IX, X, XV, XIX, XX (incorrectly denominated as Count XXI in the complaint), XXVI (incorrectly denominated as Count XXV in the complaint), XXIX (incorrectly denominated as Count XXX in the complaint), and XXX (incorrectly denominated as Count XXIX in the complaint); and
(c) Counts VII, VIII, XVII, XVIII, XXVII, XXVIII to the extent that they are brought under the Pennsylvania Human Relations Act;
  (3) the motion of MVM to dismiss the following counts of the Complaint for failure to state a claim is GRANTED:

  (a) Counts IV, VII, XIV, XVII, XXIV, and XXVII;

 

(b) Counts VI, XVI, and XXV (incorrectly denominated as Count XXVI in the complaint) to the extent that they are brought under a theory of disparate impact; and
  (c) Counts VIII, XVIII, and XXVIII to the extent that they are brought under the Pennsylvania Human Relations Act; (4) the motion of defendant MVM, Inc. for summary judgment is GRANTED with respect to Count XXX (incorrectly denominated as Count XXIX in the complaint);

  (5) judgment is entered in favor of defendant MVM, Inc. and against plaintiff Donald Jones on Count XXX (incorrectly denominated as Count XXIX in the complaint); and

  (6) the motion of MVM to dismiss Counts I, II, III, XI, XII, XIII, XXI, XXII, and XXIII for failure to state a claim is DENIED as moot.

  BY THE COURT:


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