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LEITCH v. MVM

July 21, 2004.

GEORGE H. LEITCH, et al.
v.
MVM, INC., et al.



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

MEMORANDUM

Twenty-four plaintiffs, current and former Court Security Officers ("CSOs") charged with protecting federal courthouses, bring this putative class action on the ground that they were wrongfully terminated or have been threatened with termination. The named defendants are MVM, Inc. ("MVM"), the United States Marshals Service ("USMS"), the Department of Justice,*fn1 and the United States (collectively the "federal defendants"). It is undisputed that the USMS has a contract with MVM to provide CSOs to maintain security at the courthouses.

Various motions are now before the court. They are (1) a motion of plaintiffs to certify a class action; (2) motions of the defendants to dismiss; (3) a motion of the plaintiffs for an "order adjudicating that the notice of tort claim filed . . . satisfies the requirements of the Federal Tort Claims Act for this action"; (4) a motion of the plaintiffs to permit discovery; and (5) motions of the defendants for a protective order staying discovery. Only recently, the plaintiffs have also moved "for Leave to File [a] Second Amended Complaint to Accomplish Technical Amendments."

  I.

  The plaintiffs' first amended complaint followed the adoption of updated physical fitness standards for CSOs by the Judicial Conference of the United States and implementation of those standards by the USMS. Six of the named plaintiffs contest their terminations as CSOs in 2002 and 2003.*fn2 These plaintiffs argue that "[t]he Defendants are either intentionally or mistakenly interpreting the results of medical exams." First Am. Compl. at 6. The remaining eighteen plaintiffs who are still employed by MVM contend that they have "been threatened with removal from the CSO program."*fn3 Id. at 3. Moreover, the plaintiffs allege that some of them have been required to pay for medical examinations in contravention of their employment contracts. Plaintiffs bring five causes of action against each of the defendants. Id. at 6. Plaintiffs allege: (1) violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (2) wrongful termination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Pennsylvania Human Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43, § 951 et seq., the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:5-1 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; (3) breach of contract; (4) violation of the Back Pay Act, 5 U.S.C. § 5596; and (5) concert of action by the defendants.

  II.

  We begin with plaintiffs' motion to certify a class action. They have proposed that we certify subclasses defined as follows:
[Subclass A:] Those CSOs terminated by MVM, Inc. since January 1, 2002 on the basis of the USMS revoking the CSO credentials for medical reasons. The class shall further be limited to persons 40 years of age and older who were employed in the states of Pennsylvania and New Jersey.
Pls.' Reply Br. to MVM Opp'n to Mot. to Cert. Class at 10.
 
[Subclass B:] Those who . . . have been wrongfully required to pay for medical exams.*fn4
First Am. Compl. at 5. Class certification may only be granted if the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure are satisfied:
(a) Prerequisites to a Class Action. One or more members of a class may sue . . . as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims . . . of the representative parties are typical of the claims . . . of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The elements of this four-part test are commonly referred to as "numerosity," "commonality," "typicality," and "representativeness." Our court may only certify a class if we are "satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). The plaintiffs must also meet one of the conditions set out in Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b) provides:
An action may be maintained as a class action if the prerequisites of [Rule 23(a)] are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other methods for the fair and efficient adjudication of the controversy. . . .
  We first consider whether the proposed Subclass A satisfies the "numerosity" requirement of Rule 23(a). Although there is no rigid guideline, courts typically hold that groups of twenty or fewer individuals are not so numerous that joinder is impracticable. See 5 James Wm. Moore et al., Moore's Federal Practice § 23.22[1][b] (3d ed.), citing Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied, 479 U.S. 883 (1986). More than 40 people tend to be sufficiently numerous, while groups of 21 to 39 people may or may not meet the requirement depending on the surrounding circumstances. See Moore's § 23.22[1][b]. In the case at bar, MVM has provided a declaration from a company official stating that between October 1, 2001, the date the company entered into its contract with the USMS, and January 15, 2004, the company had terminated only seventeen (17) CSOs employed under the "Third Circuit contract in New Jersey and Pennsylvania." Lorenzoni Decl. at ¶ 5. Among this group of seventeen, we know of four who are already pursuing independent actions against MVM before the undersigned. Wilson v. MVM, No. 03-4514 (E.D. Pa. filed Aug. 5, 2003); McGovern v. MVM, No. 04-2541 (E.D. Pa. filed June 10, 2004). The potential class is therefore reduced to thirteen. Furthermore, the plaintiffs have not argued that all thirteen of the remaining CSOs lost their jobs for medical reasons or that they were 40 years of age or older, which are explicit limitations in the definition they have provided. In any case, we do not think that a group of thirteen or fewer is sufficiently large for the certification of a class in this case.

  That there may be individuals who will be affected by the defendants' actions in the future would militate in favor of a finding of numerosity. Moore's § 23.22[1][f]; see also Dudo v. Schaffer, 82 F.R.D. 695 (E.D. Pa. 1979). "[H]owever, these `future' class members cannot be taken into account unless some basis exists for a reasonable approximation of their number." Dudo at 699 (citation omitted). Importantly, the plaintiffs have not established that the purported Subclass A is likely to gain an appreciable number of future members. The plaintiffs themselves note that "[t]his case presents one of the most discrete and easily administrated class actions one can imagine. The terminated Sub-Class A contains less than 20 members. . . ." Pls.' Reply Br. at 8 (emphasis added). The allegation in the first amended complaint that eighteen of the currently-employed named plaintiffs "have become targets for wrongful termination" does not convince us that Subclass A will grow significantly greater in number in the future. Compl. at ¶ 8.

  Our conclusion that joinder of the members of purported Subclass A is not "impracticable" is supported by several other considerations. Fed.R.Civ.P. 23(a). Since the CSOs who have been terminated are each seeking significant amounts of lost pay and other monetary damages, the parties do not lack an incentive to institute individual actions. See Moore's § 23.22[1][e]. As the plaintiffs indicated in their Notice of Tort Claim filed with the federal government, "the damages for the terminated officers will in most cases exceed $100,000 per person." Additionally, the terminated CSOs are easily identified and located. See Moore's § 23.22[1][f]. In sum, the plaintiffs' proposed Subclass A does not satisfy the numerosity requirement of Rule 23(a) of the Federal Rules of Civil Procedure. Thus, we need not determine whether other prerequisites for class certification have been met.

  We next turn to the plaintiffs' proposed definition for Subclass B. As stated above, this subclass is defined as: "Those [CSOs] who . . . have been wrongfully required to pay for medical exams." The plaintiffs have made no attempt to explain how many CSOs in total were compelled to pay the cost of medical exams. MVM has submitted a declaration that, as of January 15, 2004, MVM employed 264 CSOs in New Jersey and Pennsylvania under the contract with the USMS. However, the plaintiffs have offered no analysis concerning what fraction of these CSOs have been required to undergo medical exams at their own expense as a condition of their employment. Under the numerosity requirement, "[w]hile [a] Plaintiff is not required to fix a precise number, [a] Plaintiff must show some evidence of the existence of the numbers of persons for whom [the Plaintiff] speaks. Mere speculation is insufficient. To the contrary, a higher level of proof than mere common sense impression or extrapolation from cursory allegations is required." Carpenter v. BMW of N. Am., Inc., 1999 WL 415390 at *7 (E.D. Pa. June 21, 1999) (internal quotation marks and citations omitted). Even if we were to assume that all of the approximately 264 CSOs who are currently employed have been required to pay for medical examinations, MVM has pointed out that disputes concerning payment for medical examinations are in many, if not all, cases covered by binding arbitration under collective bargaining agreements ("CBAs"). The plaintiffs have again presented nothing to establish how many, if any, purported members of Subclass B are not covered by such agreements or have completed the necessary arbitration proceedings. In light of these deficiencies, the plaintiffs have not met their burden with regard to numerosity for Subclass B.

  Accordingly, we will deny plaintiffs' motion for class action certification. III.

  We next consider the motions to dismiss filed by the federal defendants and MVM. To the extent that we are considering a motion to dismiss for failure to state a claim, we will "accept all well-pleaded allegations in the complaint as true and . . . draw all reasonable inferences in favor of the non-moving party." In re Rockefeller Ctr. Prop. Secs. Litig., 311 F.3d 198, 215 (3d Cir. 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., 998 F.2d 1192, 1196 (3d Cir. 1993).

  The alleged facts are in many ways identical to those in another action that is currently before the undersigned. Wilson v. MVM, No. 03-4514 (E.D. Pa. filed Aug. 5, 2003). As in that case, the plaintiffs here are CSOs and have worked in federal courthouses in the Third Circuit pursuant to a contract between the USMS and MVM. Furthermore, as in Wilson, the plaintiffs' pleading states that they have been terminated or threatened with termination as a result of physical fitness and medical standards that have been implemented by the USMS. The contract between the USMS and MVM is the same in both actions. Under this contract, which the federal defendants attach to their motion to dismiss, the plaintiffs are denominated as employees of MVM, and MVM is denominated as an independent contractor of USMS. As in Wilson, a number of claims or causes of action now presented require us to determine whether the CSOs are "employees" or "independent contractors" of the federal government. To decide this question, we will again apply the thirteen factor test outlined in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-752 (1989); see Wilson v. MVM, No. 03-4514, 2004 WL 765103, at *2-8 (E.D. Pa. Apr. 1, 2004). In doing so, we accept plaintiffs' well-pleaded facts as true and consider the terms of the undisputed contract between MVM and the USMS. The plaintiffs have not contended that their relationship with MVM and the USMS deviates in any way from the description outlined in the contract between these two parties.

  The following reasoning from Wilson is applicable here:
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 . . . 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.
The plaintiffs here are employees of MVM, and plaintiffs and MVM are independent contractors vis-a-vis the USMS.

  A.

  The plaintiffs' first cause of action is brought under the ADEA. The claim against the federal defendants can only proceed if a given plaintiff is an employee of or an applicant for employment with the federal government. See 29 U.S.C. § 633a. As we have explained in detail in Wilson and have explained here, the plaintiffs were not employees of the federal government. They were employees of MVM. Therefore, we will grant the motion of the federal defendants to dismiss the ADEA claims for failure to state a claim upon which relief can be granted.

  The plaintiffs also bring ADEA claims against MVM. Initially, MVM argued that each and every ADEA claim against it should be dismissed because none of the plaintiffs had exhausted his administrative remedies. However, MVM has not disputed the plaintiffs' subsequent assertion that plaintiff Leitch filed an age discrimination charge with the Equal Employment Opportunity Center ("EEOC") on November 24, 2003 on behalf of himself and other MVM employees. MVM abandons its exhaustion argument in its reply. Thus, we will turn to MVM's other grounds for the dismissal of the ADEA claims against it.

  There are three categories of plaintiffs relevant to our analysis. They are those who: (1) are currently-employed but have been threatened with termination; (2) have been required to pay the cost of medical examinations; and (3) have been terminated.*fn5 MVM argues that the ADEA claims based on threatened termination must be dismissed because they do not satisfy every element of a prima facie case. We agree. A successful ADEA claim requires the plaintiff to have suffered from an adverse employment action. Anderson v. Consolidated Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002); Connors v. Chrysler Financial Corp., 160 F.3d 971, 973-74 (3d Cir. 1998). As our colleague Judge Pollak has recently observed:
An adverse employment action sufficient to support a prima facie case [under the ADEA] must be "a significant change in employment status, such as hiring, firing, failing to promote, reassignment, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 141 L.Ed.2d 633, 118 S.Ct. 2257 (1998). Such an action "in most cases inflicts direct economic harm and requires an official act taken by a supervisor within the company who has the power to make economic decisions affecting employees under his or her control." Id. at 762. The action must be an actual adverse action, "as opposed to conduct that the employee generally finds objectionable." Harley v. McCoach, 928 F. Supp. 533, 541 (E.D. Pa. 1996) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 387-88 (3d Cir. 1995)).
Sherrod v. Phila. Gas Works, 209 F. Supp.2d 443, 450 (E.D. Pa. 2002). Those plaintiffs who have only been threatened with termination have not pleaded an adverse employment action of the type that affords the protection of the ADEA. According to the first amended complaint, plaintiff Deitz "has been threatened with removal from the CSO program and threatened with the revocation of his credentials" and the other CSOs who are currently employed "have become targets for wrongful termination." First Am. Compl. ¶¶ 7, 8. However, the plaintiffs merely threatened with termination have not alleged "a significant change in employment status." See Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 531 (7th Cir. 2003); Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997). Therefore, the ADEA claims against MVM based on mere threats of termination will be dismissed for failure to state a claim upon which relief can be granted.

  We next turn to the ADEA claims by plaintiffs that are based on the contention that they were improperly required to pay for medical examinations. MVM's first argument in support of its motion to dismiss is that these plaintiffs have not suffered an "adverse employment action" sufficient to earn the protection of the ADEA. See Anderson, 297 F.3d at 249. We are not persuaded. Assuming for the moment that certain CSOs were required to pay for their own medical examinations in contravention of their employment contracts, this would certainly "inflict[] direct economic harm" in a way that would meet the standard of an adverse employment action. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). MVM also argues that these plaintiffs did not exhaust the remedies afforded in their CBAs. However, we will not consider this argument here since it was made for the first time in MVM's reply to the plaintiffs' opposition to the motion partially to dismiss. In sum, MVM's motion to dismiss the ADEA claims of plaintiffs who contend that they have been improperly required to pay for their own medical exams will be denied without prejudice.

  MVM moves to dismiss the ADEA claims of plaintiffs Smith, Friel, and Scorzafave on the ground that they did not exhaust their administrative remedies within the statutorilyprescribed time period of 300 days after their termination. 29 U.S.C. § 626(d). According to an undisputed MVM declaration attached to its motion partially to dismiss, Smith, Friel, and Scorzafave were terminated by MVM on April 2, 2002, October 23, 2002, and December 9, 2002, respectively. Therefore, pursuant to the ADEA, Smith, Friel, and Scorzafave were required to file their age discrimination charges with the EEOC by January 27, 2003, August 19, 2003, and October 6, 2003, respectively. The undisputed declaration submitted by MVM avers that they did not do so. Recognizing that they did not file timely administrative claims with the EEOC, Smith, Friel, and Scorzafave contend that they should be able to rely on the age discrimination charge filed by plaintiff Leitch with the New Jersey Division on Civil Rights and the EEOC on November 24, 2003. However, by that date, the window during which these three plaintiffs could file age discrimination charges with the EEOC had closed. See Velez v. QVC, Inc., 227 F. Supp.2d 384, 399 (E.D. Pa. 2002).

  They then attempt to rely on Leitch's original charge of disability discrimination filed on July 17, 2003. This will not suffice, for disability discrimination is separate and distinct from age discrimination. See Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984); see also Anderson v. Consolidated Rail Corp., 2000 WL 19259 (E.D. Pa. Jan. 10, 2000); Gavin v. Peoples Natural Gas Co., 464 F. Supp. 622, 624 (M.D. Pa. 1979), vacated on other grounds, 613 F.2d 482 (3d Cir. 1980). If we permitted them to proceed with their age discrimination claims, the EEOC ...


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