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April 1, 2004.

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 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).


  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 ...

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