The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Alan Fromm, was a court security officer ("CSO") working at the federal courthouse in Williamsport, Pennsylvania. He was an employee of defendant, MVM, Inc., which had a contract with the United States Marshals Service (USMS) to provide CSOs for the federal courthouses in the Third Circuit. In October 2002, MVM terminated him because he did not meet new hearing standards required by the USMS for CSOs.
Plaintiff filed this suit contesting his discharge. He named as defendants MVM, the Attorney General of the United States, and the Director of the USMS, making claims under federal and state law, including claims under Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12117; the Rehabilitation Act ("RA"), 29 U.S.C. § 791; and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. §§ 951-963 (West 2009). In two memorandums, we disposed of all the claims. Fromm v. MVM, Inc., 2004 WL 5355973 (M.D. Pa. Dec. 14, 2004), and 2006 WL 133540 (M.D. Pa. Jan. 10, 2006). On appeal, the Third Circuit affirmed in part and reversed in part. Fromm v. MVM, Inc., 371 F. App'x 263 (3d Cir. 2010)(nonprecedential). As to the federal defendants, the court of appeals decided that Plaintiff had no claim against them because he had not exhausted his administrative remedies. Id. at 268. As to MVM, the court concluded that there was no evidence that MVM "through its own conduct" regarded Fromm as disabled. Id. at 270. However, it remanded for further proceedings on whether MVM could be liable under 42 U.S.C. § 12112(b)(2) by way of its contractual agreement with the USMS for having subjected Fromm to discrimination prohibited by the ADA.*fn1 This requires a determination of whether the USMS regarded Fromm as disabled because of his hearing limitation.*fn2
MVM has moved for summary judgment, contending there is no evidence that the USMS regarded Plaintiff as disabled in the major life activities at issue here, hearing or working. We examine the motion under the well established standard. See Colwell v. Rite Aid Corp., 602 F.3d 495, 500-01 (3d Cir. 2010).
We take this background from our 2006 memorandum, adding any new evidentiary material submitted in connection with the current motion for summary judgment.
The USMS provides security for federal courthouses. It carries out this mission by contracting with private companies to provide that security. MVM has the contract for the Third Circuit and provides security at federal courthouses in Pennsylvania, including the United States Courthouse in Williamsport.
MVM has to provide employees who meet the medical requirements established by the contract. A CSO has to undergo a pre-employment medical examination and meet the medical standards to qualify for the position. He must also undergo an annual physical examination to remain qualified.
The medical standards for CSOs applicable to this case 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 the 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.*fn3
In January 2002, Fromm underwent his annual medical examination. In April 2002, the reviewing physician concluded that Fromm's hearing-test findings "may hinder safe and efficient performance of essential job functions." Fromm was advised to have further testing and did have a second audiological examination.
In October 2002, Dr. Louis Chelton, a reviewing physician for the USMS, reviewed the tests and filled out another medical review form, finding that Plaintiff had: (1) a "significant hearing loss in the conversational range"; (2) a "decreased ability to hear soft sounds and to distinguish speech with [the] right ear"; and an inability to "effectively localiz[e] the direction of sound, an essential job function." The form gave notice to Fromm that his "impairment in performing these essential law enforcement functions poses a significant risk to the health and safety of yourself, other law enforcement ...