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LEITCH v. MVM

United States District Court, E.D. Pennsylvania


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 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).

  B.

  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 relief.

  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 economic harm."

  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 reply memorandum.

  C.

  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 the [USMS].
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 cause.

  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 to dismiss.

  D.

  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.

  E.

  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. 1995).

  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 and entitlements.
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 caption.

  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 GRANTED:

(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 termination;
(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 termination; and
(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 prejudice;

  (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 MVM, Inc.;

  (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 DENIED.


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