United States District Court, E.D. Pennsylvania
July 21, 2004.
GEORGE H. LEITCH, et al.
MVM, INC., et al.
The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
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
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.
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 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
(1) the prosecution of separate actions by or against
individual members of the class would create a risk
(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;
(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[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[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[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[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[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
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
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
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
The plaintiffs here are employees of MVM, and plaintiffs and MVM
are independent contractors vis-a-vis the USMS.
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 would be denied "the opportunity
to settle disputes through conference, conciliation, and
persuasion." Antol v. Perry, 82 F.3d 1291 (3d Cir. 1996).
Smith, Friel, and Scorzafave next contend that their ADEA
claims should be allowed to proceed because they purportedly
exhausted their administrative remedies when they were plaintiffs
in a similar action pending in the U.S. District Court for the
District of Idaho (the "Idaho action"). See, Strolberg, et
al. v. AKAL Security, Inc., et al., No. 03-0004, slip op. (D. Idaho
Aug. 11, 2003). It may be true that these plaintiffs were parties
to the Idaho action. However, it is undisputed that the
plaintiffs in the Idaho action had only exhausted their
administrative remedies as to a company named AKAL Security, Inc.
("AKAL"), and not as to MVM. It would be improper to allow Smith,
Friel, and Scorzafave to rely upon the EEOC charges that were
made with respect to AKAL. An EEOC filing serves at least two
important purposes: (1) it notifies the defendant of the alleged
violation; and (2) it gives the EEOC an opportunity to secure
voluntary compliance. Bernstein v. National Liberty Int'l
Corp., 407 F. Supp. 709, 715 (E.D. Pa. 1976). Clearly, neither
of these purposes could be properly advanced if the Idaho
plaintiffs did not mention MVM in their EEOC charge.
Smith, Friel, and Scorzafave further argue that they should be
able to ride the coattails of the EEOC filings of John Wilson,
Frank Kryjer, and Donald Jones, the three plaintiffs in Wilson
v. MVM, currently before the undersigned. However, the EEOC
charges filed by Wilson, Kryjer, and Jones did not allege
class-wide discrimination. Therefore, Smith, Friel, and
Scorzafave cannot rely upon the charges of these other CSOs.
See Communications Workers of Am., Local 1033 v. N.J. Dep't of
Pers., 282 F.3d 213, 217 (3d Cir. 2002). In sum, we will grant MVM's motion for summary judgment on the
ADEA claims brought by Smith, Friel, and Scorzafave.*fn6
Finally, all of the remaining ADEA claims will be dismissed to
the extent that they are brought under a theory of disparate
impact. We have recently determined that the ADEA does not
support such a theory. See Wilson v. MVM, No. 03-4514, 2004
WL 765103, at *11 (E.D. Pa. Apr. 1, 2004).
The federal defendants move to dismiss plaintiffs' claims of
wrongful termination, brought under the Americans with
Disabilities Act ("ADA"), the Pennsylvania Human Relations Act
("PHRA"), the New Jersey Law Against Discrimination ("NJLAD"),
and the Rehabilitation Act of 1973. The federal government has
not waived sovereign immunity with respect to the ADA and state
anti-discrimination laws such as the PHRA and the NJLAD. See
id. at *12; Krumel v. City of Fremont, No. 8:01CV259, 2002 WL
808633, at *1 (D. Neb. Jan. 2, 2002); see also Dep't of the
Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). Therefore, we
will grant the motion of the federal defendants to dismiss the
ADA, PHRA, and NJLAD claims for failure to state a claim for
The plaintiffs sue the federal defendants for violation of §§
501 and 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.*fn7 Section 501 relates to "discrimination on the
basis of disability in employment decisions by the Federal
Government." Lane v. Pena, 518 U.S. 187, 193; see
29 U.S.C. § 791. Since we have determined that the plaintiff CSOs are not
federal employees, we will dismiss for failure to state a claim
their cause of action under § 501 of the Rehabilitation Act.
The federal defendants next move to dismiss the claim brought
under § 504 of the Rehabilitation Act. Section 504 provides that
"[n]o otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be excluded
from the participation in . . . any program or activity receiving
Federal financial assistance." 29 U.S.C. § 794(a). The federal
defendants contend that the plaintiffs failed to comply with the
administrative requirements of this statute. Our Court of Appeals
has held "that a plaintiff must exhaust Title VII remedies before
bringing suit under sections 504 and 505(a)(2) of the
Rehabilitation Act." Spence v. Straw, 54 F.3d 196, 201 (3d Cir.
1995). Under the applicable regulations, the plaintiffs were
required to contact an EEO Counselor at the particular federal
agency within 45 days of their termination. See id. at 202,
citing 29 C.F.R. § 1614.105. The federal defendants have
submitted an uncontradicted declaration from a Specialist in the
EEO Office of the USMS which avers that none of the named plaintiffs made the necessary contact. We will
therefore dismiss the § 504 claims against the federal
defendants. However, we dismiss this claim without prejudice. The
plaintiffs still have an opportunity to attempt to rectify the
deficiency and to contact an EEO Counselor at the USMS. The
agency has the discretion to accept an otherwise untimely
administrative complaint. Spence, 54 F.3d at 202.
In their response to the federal defendants' motion to dismiss,
the plaintiffs argue that Ron Strolberg and Charles Hawkins, the
lead plaintiffs in the Idaho action, "took their cases through
three levels of grievance/appeal under the Marshals Service,
Department of Justice procedure and received a final
determination by the Department of Justice that they had no claim
because they were not employees and in that denial were granted
the right-to-sue in Federal Court." Resp. at 3. The plaintiffs
here add that "[t]he Justice Department has taken the same
position with respect to all CSOs who have entered that process
and there is nothing to be gained by the futile act of every
Pennsylvania and New Jersey CSO making further filings." Id. We
disagree. For one thing, such a futility argument has been
discounted. See Murphy v. West, 945 F. Supp. 874, 876 (D. Md.
1996), aff'd, 172 F.3d 863 (Table) (4th Cir. 1999).
Furthermore, Strolberg and Hawkins were employed under a
different contract than the plaintiffs at bar, and in a different
state, and therefore any determinations made by the EEO office of
the USMS regarding whether they were "federal employees"
obviously had the potential to be different. The suggestion that "[t]he Justice
Department has taken the same position with respect to all CSOs
who have entered that process" is of little weight, because the
plaintiffs have not explained which other CSOs to whom they are
referring. The bottom line is that in this circumstance it is not
within the power of the plaintiffs to make a final determination
as to whether initiation of contact with the EEO office of the
USMS would be futile.*fn8
MVM argues that the claims of plaintiffs under the ADA, PHRA,
NJLAD, and the Rehabilitation Act, based on mere threats of
termination, should be dismissed because the plaintiffs have not
established the prima facie case that is required under these
statutes. We agree. In order to make out a case of discrimination
under any of these statutes, a plaintiff must show, among other
things, that he suffered from an "adverse employment decision."
See Galle v. Dep't of Gen. Servs., No. Civ. A. 02-4622, 2003
WL 21293795, *4 (E.D. Pa. Mar. 18, 2003), citing Shaner v.
Synthes, 204 F.3d 494, 500 (3d Cir. 2000) (ADA and Rehabilitation Act); Buskirk v. Apollo Metals,
307 F.3d 160, 166 n. 1 (3d Cir. 2002) (PHRA); see also Cinelli v. U.S.
Energy Partners, 77 F. Supp.2d 566, 573 (D.N.J. 1999) (NJLAD).
An adverse employment action is generally one that "alters the
employee's compensation, terms, conditions, or privileges of
employment, deprives him or her of employment opportunities, or
adversely affects his or her status as an employee." Robinson v.
City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997) (internal
quotation marks, brackets, and citations omitted). As we
explained above, mere threats of termination do not rise to the
level of an "adverse employment action." Therefore, the ADA,
Rehabilitation Act, PHRA, and NJLAD claims against MVM which are
based on threatened termination will be dismissed for failure to
state a claim.
MVM also argues that the ADA, Rehabilitation Act, PHRA, and
NJLAD claims that are based on the purported requirement that
some plaintiffs pay for their own medical examinations should be
dismissed for failure to make out a prima facie case. We
disagree. As we have determined, such a requirement is "direct
With respect to the ADA claims by CSOs who have actually been
terminated, MVM argues that plaintiff Smith's ADA claim must be
dismissed because he failed to exhaust the administrative
remedies that are a prerequisite to suit. MVM attaches to its
motion to dismiss an undisputed declaration stating that MVM
terminated Smith on April 2, 2002. Smith then had 300 days, or until January 27, 2003, to file an
administrative charge of the allegedly discriminatory act with
the EEOC. 42 U.S.C. § 12117(a); § 2000e-5. It is uncontested that
Smith did not do so. He cannot rely upon the EEOC charge for
disability discrimination filed by Leitch on July 17, 2003, since
Smith's claim was already stale by this date. See Velez v.
QVC, Inc., 227 F. Supp.2d 384, 399-400 (E.D. Pa. 2002). And,
for the reasons we have already discussed in depth, Smith cannot
rely upon the charges filed by Strolberg, Hawkins, Wilson,
Kryjer, or Jones. Strolberg and Hawkins did not even mention MVM
in their administrative charges, and Wilson, Kryjer, and Jones
did not make a charge of class-wide discrimination. Accordingly,
we will grant MVM's motion for summary judgment on Smith's ADA
claim for wrongful termination.*fn9
MVM moves to dismiss the PHRA claims of the terminated CSO
plaintiffs who worked in Pennsylvania: Smith, Scorzafave, Burge,
and Churm.*fn10 Plaintiffs had 180 days from the date of
their termination to file an administrative charge with the
Pennsylvania Human Relations Commission ("PHRC") in order to
preserve the right to bring a PHRA action. 43 Pa. Cons. Stat.
Ann. § 959(h). MVM's undisputed declaration states that none of the plaintiffs had filed charges with the PHRC as of January 15,
2004. This date is more than 180 days after the termination of
each of the plaintiffs.
The only response by Smith, Scorzafave, Burge, and Churm is
that they should be able to piggyback on the filings of others.
However, plaintiff Leitch filed with the New Jersey Division on
Civil Rights, not with the Pennsylvania Human Relations
Commission. In addition, while Wilson, Kryjer, and Jones
apparently filed with the PHRC, it is undisputed that none of
these filings was made on behalf of a class. In sum, we will
grant summary judgment to MVM on the PHRA claims of Smith,
Scorzafave, Burge, and Churm.*fn11
We will not address the argument of MVM that the PHRA, NJLAD,
Rehabilitation Act, and ADA claims should be dismissed on the
grounds that none of the plaintiffs has exhausted the remedies
provided in applicable CBAs. Again, MVM did not raise these
points in its motion to dismiss and introduces them only in its
The federal defendants seek dismissal of the breach of contract
claims against them. The plaintiffs have conceded that they "do
not have the facts at the moment to sustain [those] claim[s]."
Pls.' Resp. to Mots. to Dismiss at 4. Therefore, we will dismiss
these claims as moot. MVM also moves to dismiss certain breach of contract claims. It
is undisputed that the CBA that applies to plaintiffs Friel and
Leitch provides in relevant part:
After completion of the probationary period, no
employee shall be dismissed or suspended without just
cause unless the employee is removed from working
under [MVM's] contract with the Government based upon
an oral or written request by the Government, or the
employee's credentials are denied or terminated by
CBA Art. X (emphasis added). The CBA further states that:
The [USMS] may supersede any understanding of the
parties hereto regarding assignments, hours, shifts,
credentials, qualifications, etc., as the [USMS]
deems to be in the interest of the [USMS's] overall
security objective, and there shall be no recourse
against [MVM] regarding such actions. . . .
Notwithstanding any provision of the [Collective
Bargaining] Agreement, to the extent the [United
States Marshals Service] or the Government requires
compliance with specific procedures (e.g., security
clearances, medical examinations, weapon proficiency
testing, uniforms/appearance standards, staffing
determinations, etc.), . . ., [MVM] will comply with
those requirements without recourse by any Employee
or the Union against [MVM].
We do not think that Friel and Leitch can establish that they
had any rights to continued employment with MVM in the face of
such contractual language. Their ability to challenge their
termination for lack of just cause was obviously conditioned on
their continued deputization by the USMS. The plaintiffs have not
contested MVM's characterization of the relevant CBA. Therefore,
we will grant MVM's motion to dismiss as to Friel and Leitch for failure to state a breach of contract
claim, to the extent that Friel and Leitch contend that they were
wrongfully discharged. However, we did not dismiss the breach of
contract claims of Friel and Leitch to the extent that these
claims are based on the requirement they pay for medical exams.
MVM further moves to dismiss the breach of contract claims of
plaintiffs Burge, Churm, Scorzafave, and Smith*fn12 on the
ground that they did not follow the grievance procedures in their
employment contracts. MVM explains that the CBAs applicable to
these four defendants provide that "[MVM] shall have the right to
discharge, discipline, or suspend an employee for just cause."
The CBAs in question, which MVM attaches to its motion to
dismiss, provide for grievance and arbitration procedures for
employees who allege that they were terminated without just
Before an employee can bring a breach of contract claim for
wrongful discharge against an employer, he must exhaust any
grievance or arbitration remedies provided in the employment
agreement. See Long v. Int'l Union of Elec., Radio, & Machine
Workers Local 141, 544 F. Supp. 1375, 1382 (E.D. Pa. 1982). MVM
has presented an undisputed declaration to the effect that
neither Burge, Scorzafave, Smith, nor Churm filed a grievance with MVM. Because there is no genuine issue of material fact, MVM
is entitled to summary judgment. Fed.R.Civ.P. 56.
MVM addresses the breach of contract claims of plaintiffs who
have not been terminated for the first time in its reply to the
plaintiffs' opposition to its motion to partially dismiss. The
argument MVM makes, that the currently-employed plaintiffs have
not exhausted the remedies in the applicable CBA, is plausible.
However, we cannot address this argument here since MVM offers no
good reason why it was not first presented in the original motion
Plaintiffs' fourth cause of action in the amended complaint is
entitled "Back Pay Act, 5 U.S.C. § 5596." "The Back Pay Act does
not create an alternative cause of action, rather it is an
auxiliary measure that only operates at the relief stage."
Gilbert v. FDIC, 950 F. Supp. 1194, 1197 (D.D.C. 1997). In any
event, the Back Pay Act is clear on its face that it only applies
to employees of specific federal agencies and, as we have
determined, the plaintiffs in this action are not federal
employees. We will therefore grant the motion of the federal
defendants to dismiss for failure to state Back Pay Act claims.
We will also dismiss this cause of action as it relates to MVM.
The plaintiffs bring a cause of action based on the tort of
"Concert of Action." The United States has waived sovereign
immunity with respect to tort actions via the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. However,
only the United States, but not any of its officials, employees
or agencies, may be sued under the FTCA. See Brown v. U.S.
Post Office, 2002 WL 511466, Civ. A. No. 01-6462, *1 (E.D. Apr.
4, 2002) (citing Meyers & Myers, Inc. v. U.S. Post Office,
527 F.2d 1252, 1256 (2d Cir. 1975)). Therefore, this court lacks
subject matter jurisdiction over the "concert of action" claim
against the USMS and the Department of Justice.
The United States has moved to dismiss the claim against it on
a variety of grounds, inter alia, that the plaintiffs'
administrative filing failed to allege damages for a "sum
certain" as required by 28 U.S.C. § 2675 and 28 C.F.R. § 14.2.
See Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir.
The FTCA provides that "[a]n action shall not be instituted
upon a claim against the United States for money damages for
injury or loss of property . . . unless the claimant shall have
first presented the claim to the appropriate Federal agency."
28 U.S.C. § 2675(a). An administrative claim is deemed to be
"presented" when the Federal agency receives notification of the
incident, "accompanied by a claim for money damages in a sum
certain." 28 C.F.R. § 14.2(a). The "sum certain" requirement is
jurisdictional and cannot be waived. See McNeil v. United
States, 508 U.S. 106 (1993); Bialowas v. United States,
443 F.2d 1047, 1049 (3d Cir. 1971). The United States contends that the plaintiffs' administrative
filing did not state a "sum certain," and therefore the
plaintiffs have not satisfied the jurisdictional prerequisites
for the FTCA claim. It is undisputed that the plaintiffs' "Notice
of Tort Claim" filing stated in part that:
The damages for the terminated officers will in most
cases exceed $100,000 per person, especially if they
are not reinstated prior to the time of what would
have been their normal retirement date as a CSO. The
damages in some cases may exceed $350,000 each
together with attorneys fees and bridging of benefits
Notice of Tort Claim at 1.
Importantly, the filing's use of the word "exceed" does not in
and of itself invalidate the notice as lacking a "sum certain." A
number of Courts of Appeals have held that damage estimates in
administrative filings that include phrases such as "in excess
of" or "presently" along with the dollar figure do not incurably
taint the filing. See Adams v. United States Dep't of Housing
and Urban Dev., 807 F.2d 318 (2d Cir. 1986); Erxleben v. United
States, 668 F.2d 268 (7th Cir. 1981); Martinez v. United
States, 728 F.2d 694 (5th Cir. 1984). Such courts have generally
held that words suggesting that the claim is for an amount
"greater than" a specific dollar figure should be treated as
"surplusage." See, e.g., Martinez at 697. Essentially, the
extraneous wording is ignored. Id.
Nevertheless, we cannot conclude that the damage figures in the
plaintiffs' administrative filing met the "sum certain" requirement. Putting aside the surplusage of the word
"exceed," the fundamental deficiency with the administrative
filing is its use of the phrases "damages . . . in most cases
exceed $100,000 per person" and "damages in some cases may
exceed $350,000 each." (emphasis supplied). Such terminology
prevented the government's claims administrator from knowing
which specific plaintiffs' claims were in the $100,000 category
and which were at the $350,000 level. The "amount of claim"
information filed by the plaintiffs clearly thwarted the initial
purpose of the "sum certain" requirement, which is "to enable a
determination by the head of the federal agency as to whether the
claim falls within the jurisdictional limits of his exclusive
authority to process, settle or to properly adjudicate the
claim." Bialowas v. United States, 443 F.2d 1047, 1050 (3d Cir.
1971) (citing Pub.L. 89-506, 1966 U.S. Code, Cong. & Adm. News,
p. 2518). Plaintiffs cannot claim that they are excused from
stating a "sum certain" because their alleged tort damages were
ongoing. "[T]he existence of a continuing injury does not obviate
the requirement of a sum certain in the claimant's form." Le
Grand v. Lincoln, 818 F. Supp. 112, 115 (E.D. Pa. 1993).
In conclusion, the plaintiffs have failed to satisfy the
administrative prerequisites for suing the United States under
the FTCA. Accordingly, the plaintiffs' "Motion for Adjudication
of Adequacy of Tort Filing" will be denied, and their tort claims
against the United States will also be dismissed for lack of
subject matter jurisdiction. IV.
Finally, the plaintiffs have moved for leave to file a second
amended complaint. They explain that the first amended complaint
omitted a separate cause of action for violation of procedural
and substantive due process, and that the first amended complaint
inadvertently did not include former CSO James Sheridan in the
Rule 15(a) of the Federal Rules of Civil Procedure provides
that our court shall freely grant leave to amend when justice so
requires. At this early stage in the litigation, it is proper to
do so. However, to avoid needless further motion practice, the
plaintiffs' second amended complaint shall not include any claims
in the first amended complaint that have not survived as a result
of the accompanying Order. In other words, each claim in the
second amended complaint should be appropriately limited
according to the analysis we have provided herein. In addition,
the second amended complaint should not state a claim based on
"substantive due process." Such an amendment would be futile
since we have already determined that the rights of the CSOs here
do not implicate substantive due process. Lorenz v. CSX Corp.,
1 F.3d 1406, 1414 (3d Cir. 1993); Wilson v. MVM, No. 03-4514,
2004 WL 765103, at *11 (E.D. Pa. Apr. 1, 2004). In sum, the
second amended complaint must be crafted as set forth herein and
shall not consist of the document attached to plaintiffs'
motion to file a second amended complaint. V.
Since we are allowing a portion of the plaintiffs' claims to
move forward against MVM, we will deny as moot the motions of the
federal defendants and MVM for protective orders staying
discovery. The plaintiffs' motion for an order permitting
discovery will also be denied as moot. ORDER
AND NOW, this ____ day of July, 2004, for the reasons set forth
in the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of plaintiffs for certification of a class
action is DENIED;
(2) the motion of the United States Marshals Service, the
Department of Justice, and the United States (collectively the
"federal defendants") to dismiss the following claims for relief
in the first amended complaint for failure to state a claim is
(a) the First Cause of Action (Age Discrimination in
Employment Act ("ADEA"));
(b) the Second Cause of Action, to the extent it is
brought under § 501 of the Rehabilitation Act;
(c) the Second Cause of Action, to the extent that it
is brought under the Americans with Disabilities Act
("ADA"), the Pennsylvania Human Relations] Act ("PHRA"), and the New Jersey Law
Against Discrimination ("NJLAD");
(d) the Third Cause of Action (Contract); and
(e) the Fourth Cause of Action (Back Pay Act);
(3) the motion of the federal defendants to dismiss without
prejudice the Second Cause of Action to the extent that it is
brought under § 504 of the Rehabilitation Act is GRANTED;
(4) the motion of the federal defendants to dismiss the Fifth
Cause of Action in the first amended complaint for lack of
subject matter jurisdiction is GRANTED;
(5) the motion of defendant MVM, Inc. to dismiss the ADEA
claims in the First Cause of Action of plaintiffs who contend
that they have been improperly required to pay for their own
medical exams is DENIED without prejudice;
(6) the motion of defendant MVM, Inc. to dismiss the following
claims for relief in the first amended complaint for failure to
state a claim is GRANTED:
(a) the First Cause of Action (ADEA), to the extent
that it is brought under a theory of threatened
(b) the First Cause of Action, to the extent that it
is brought under a theory of disparate impact;
(c) the Second Cause of Action (ADA, PHRA, NJLAD, and
Rehabilitation Act), to the extent that it is brought under a theory of threatened
(d) the Third Cause of Action, to the extent a claim
is made by plaintiffs Donald J. Friel and George H.
Leitch for termination in violation of contract;
(7) the motion of defendant MVM, Inc. for summary judgment is
GRANTED with respect to the First Cause of Action, to the extent
that it is brought by plaintiffs Donald E. Smith, Donald J.
Friel, and Gregory J. Scorzafave;
(8) judgment is entered in favor of defendant MVM, Inc. and
against plaintiffs Donald E. Smith, Donald J. Friel, and Gregory
J. Scorzafave on the First Cause of Action;
(9) the motion of defendant MVM, Inc. for summary judgment is
GRANTED with respect to the Second Cause of Action, to the extent
that an ADA claim is brought by plaintiff Donald E. Smith;
(10) judgment is entered in favor of defendant MVM, Inc. and
against plaintiff Donald E. Smith on his ADA claim under the
Second Cause of Action;
(11) the motion of defendant MVM, Inc. for summary judgment is
GRANTED with respect to the Second Cause of Action, to the extent
that PHRA claims are brought by plaintiffs Donald E. Smith,
Gregory J. Scorzafave, William Burge, and Lawrence Churm; (12) judgment is entered in favor of defendant MVM, Inc. and
against plaintiffs Donald E. Smith, Gregory J. Scorzafave,
William Burge, and Lawrence Churm on their PHRA claims under the
Second Cause of Action;
(13) the motion of defendant MVM, Inc. to dismiss all PHRA
claims against it on the grounds that none of the plaintiffs has
exhausted his administrative remedies is DENIED without
(14) the motion of the defendant MVM, Inc. for summary judgment
is GRANTED with respect to the Third Cause of Action, to the
extent it is brought by plaintiffs William Burge, Gregory J.
Scorzafave, Donald E. Smith, and Lawrence Churm;
(15) judgment is entered in favor of defendant MVM, Inc. and
against plaintiffs William Burge, Gregory J. Scorzafave, Donald
E. Smith, and Lawrence Churm on the Third Cause of Action;
(16) the Fourth Cause of Action is DISMISSED as to defendant
(17) the motion of defendant MVM, Inc. to dismiss the claims in
the first amended complaint is otherwise DENIED;
(18) the motion of plaintiffs for an order adjudicating that
the notice of tort claim filed satisfies the requirements of the
Federal Tort Claims Act is DENIED;
(19) the motion of the plaintiffs for leave to file a second
amended complaint is GRANTED only to the extent of adding a claim
for procedural due process to the surviving claim and of adding
James Sheridan as a plaintiff; (20) the second amended complaint shall be filed and served
within fifteen (15) days of this Order;
(21) the motion of the federal defendants for a protective
order staying discovery in this matter is DENIED as moot;
(22) the motion of MVM for a protective order staying discovery
in this matter is DENIED as moot;
(23) the motion of plaintiffs that discovery be permitted is
DENIED as moot; and
(24) the motion of plaintiffs for leave to submit "corrections
to factual misrepresentations" by the federal defendants is