The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Alan Fromm, was a court security officer ("CSO") for the federal courts, working at the courthouse in Williamsport, Pennsylvania. His employment was terminated because of a hearing limitation in his right ear, a long-standing limitation that had been present many years before he became a CSO. He filed this lawsuit against MVM, Inc., his employer; Beningo Reyna, Director of the United States Marshals Service ("USMS"); and John Ashcroft, formerly the Attorney General of the United States.*fn1 The USMS is responsible for security at federal courts across the nation and contracted with MVM to provide CSOs for the courts within the jurisdiction of the Court of Appeals for the Third Circuit.
Fromm made claims under Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12117; the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951-963 (Purdon & Purdon Supp. 2005-06); and the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 791. He also alleged that his termination violated his right under the Fifth Amendment to substantive and procedural due process.
After the defendants filed motions to dismiss, by memorandum and order of December 14, 2004, we dismissed some of the claims but allowed the following to proceed: (1) the claims against MVM under the ADA, RA and PHRA based on a regarded-as disability; and (2) the claims against the federal defendants under the RA based on a regarded-as disability and for a procedural due process violation.
MVM has filed a motion for summary judgment and so have the federal defendants. The motions can only be granted if, when viewing the evidence in the light most favorable to Plaintiff, there is no genuine issue as to any material fact and the defendants are entitled to judgment as a matter of law. Reichley v. Pa. Dep't of Agric., 427 F.3d 236, 244 (3d Cir. 2005).
MVM's motion argues that the claims against it must fail because the record shows that it terminated Plaintiff only because the USMS demanded it and that MVM never considered Plaintiff disabled, indeed would hire him now to be a CSO if not for the USMS's decision to disqualify him. The federal defendants argue that the RA claim fails because: (1) Plaintiff did not exhaust his administrative remedies; (2) Plaintiff cannot perform the essential functions of the job; and (3) the USMS did not regard him as disabled because it did not consider him to be substantially limited in the major life activities of working or hearing. As to the procedural due process claim, the federal defendants argue that it is preempted by the RA, which provides the exclusive remedy for claims of employment discrimination against federal employers and that, in any event, the USMS provided all the process that was due in the circumstances.
After review of the parties' arguments, we have decided that we need only resolve the issues presented by the federal defendants (except their exhaustion argument) to decide both motions. The only claims left against MVM are disability claims arising from the USMS's decision to disqualify Plaintiff, so if the USMS's decision was not unlawful, no claims can be made against MVM. And in looking at the merits of the RA claim against the USMS, we decide that its decision did not violate the RA. We also decide that Plaintiff has no procedural due process claim against the USMS. Consequently, we will grant both motions.
Except for a few instances, Plaintiff does not dispute the federal defendants' statement of undisputed facts submitted in connection with their summary-judgment motion. For the most part, we will therefore adopt that statement as the summary-judgment record. We will make minor changes in the language, partially to take into account where Plaintiff properly disputes the factual accuracy of the assertion or an inference to be drawn.
"It is the primary role and mission of United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, and the Court of International Trade." 28 U.S.C. § 566(a). As a result of this mandate, the USMS provides facility security services to the federal judiciary, and for the protection of court proceedings, court officials, and judicial officers. The USMS carries out that mission, in part, by contracting with private companies to provide security at federal courthouses. MVM is the contractor for the Third Circuit and provides security at federal courthouses in Pennsylvania, including the United States Courthouse in Williamsport.
Under the terms of the CSO contract, MVM is "responsible for providing employees that meet the qualifications and requirements established under the Contract," including those related to medical and physical standards. (Doc. 54, federal defendants' Ex. 1, CSO contract, § H-3(a)). Before a CSO may be assigned to a federal courthouse, he must undergo a pre-employment medical examination, and meet certain medical standards in order to qualify for the CSO position. (Id., § C-8(a)). Current CSOs also must undergo a physical examination at least once each year to ensure that the CSO remains qualified to perform the duties of a CSO. (Id.). MVM must provide CSOs that can "withstand physical demands of the job and [are] capable of responding to emergency situations." (Id., § C-6(2)). "Failure to meet any one of the required medical and/or physical qualifications will disqualify" the CSO from duty, but the CSO "may be eligible for reappointment when the disqualifying condition is satisfactorily corrected or eliminated." (Id., § C-8(e)).
The current medical standards for CSOs were developed and implemented in January of 2001 as a result of a CSO functional job analysis conducted by the U.S. Public Health Service's Federal Occupational Health (FOH), Law Enforcement Program, at the behest of the United States Judicial Conference's Security and Facilities Committee. Richard Miller, M.D., who was then the director of law enforcement medical programs within FOH, conducted the study. The goal was to identify the essential job functions of the CSO position and then to recommend whether any changes needed to be made to the CSO medical standards or procedures.
Among the twenty-nine essential CSO job functions identified in Dr. Miller's report, there were six specific to the ability to hear: 1) comprehend speech during face-to-face conversations, 2) comprehend speech during telephone conversations, 3) comprehend speech during radio transmissions, 4) comprehend speech when you cannot see another CSO, 5) hear sounds that require investigation, and 6) determine location of sound.
To ensure that CSOs would be capable of performing these essential job functions, Dr. Miller proposed audiological standards. Under these standards, approved by the Judicial Conference, a CSO is permitted to wear hearing aids on the job, but must first pass the required hearing tests unaided. This requirement has been in effect since the revised medical review program was implemented in 2001.
On or about February 18, 1998, MVM hired Plaintiff to be a CSO at the federal courthouse in Williamsport, Pennsylvania. Fromm suffers from a hearing deficit in his right ear, which he has experienced since approximately 1984.
In January 2002, he underwent his annual medical examination, as required by the terms of MVM's contract with the Third Circuit. (Doc. 54, Ex. 2, medical review form). In April 2002, the reviewing physician concluded that Fromm's hearing-test findings "may hinder safe and efficient performance of essential job functions." (Id.). Specifically, it was noted that Fromm's "pure tone audiogram did not meet the required standards in the Right Ear . . . ." (Id.). A "[m]edical determination was deferred pending further documentation," and Fromm was directed to "[s]ee an ear, nose and throat (ENT) physician or audiologist for further functional ...