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
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 ...