United States District Court, E.D. Pennsylvania
April 1, 2004.
JOHN WILSON, et al.
MVM, INC., et al
The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
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.
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
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
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
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).
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. ¶
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
 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  the
skills required;  the source of the
instrumentalities and tools;  the location of the
work;  the duration of the relationship between the
parties;  whether the hiring party has the right to
assign additional projects to the hired party;  the
extent of the hired party's discretion over when and
how long to work;  the method of payment;  the
hired party's role in hiring and paying assistants;
 whether the work is part of the regular business
of the hiring party;  whether the hiring party is
in business;  the provision of employee benefits;
and  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
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
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
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
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
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
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
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
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
Plaintiff's concede that their Rehabilitation Act claim against MVM
should be dismissed.
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.
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
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
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
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.
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).
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.
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.
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
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
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.
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
(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
(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;
(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
(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: