Date: 02-01-2007

Case Style: John Wilson, et al. v. MVM, Inc., et al.

Case Number: 05-3204

Judge: Fisher

Court: United States Court of Appeals for the Third Circuit on appeal from the Eastern District of Pennsylvania

Plaintiff's Attorney:

Andrew M. Smith of Andrew Smith & Associates, Lafayette Hill, Pennsylvania Attorney for Appellants, John Wilson, Frank Kryjer and Donald Jones

Defendant's Attorney:

Leslie Deak, Washington, DC Attorney for Amicus-Appellant, United Government Security Officers of America International Union

Jason M. Branciforte and Katherine A. Goetzl of Littler Mendelson, Washington, Attorneys for Appellee, MVM, Inc.

Marleigh D. Dover, U.S. Department of Justice, Washington, DC

Eric Fleisig-Greene, U.S. Department of Justice, Civil Division, Washington, DC Attorneys for Appellees, U.S. Marshal Service, etc., Judicial Conference of the United States and U.S. Department of Justice

Description:

This case comes to us on appeal from the District Court's dismissal of claims and grant of summary judgment to the appellees in this case, the United States Marshal Service ("USMS"), the Judicial Conference of the United States, the United States Department of Justice (collectively "the federal defendants"), and MVM, Inc. ("MVM"). The appellants, John Wilson, Frank Kryjer and Donald Jones, filed suit against MVM and the federal defendants bringing claims under, inter alia, the Rehabilitation Act ("RA"), the Americans with Disabilities Act ("ADA"), the Due Process Clause and a plethora of state laws. They appeal the District Court's dismissal or grant of summary judgment only on the RA, ADA and procedural due process claims. For the reasons set forth below, we will affirm the District Court's decision.

I

The factual background of this case is one that is becoming familiar in the many district courts that have faced challenges by court security officers ("CSOs") to the process of medical qualification. Based on the statutory obligation to provide for the security of the United States Courts, 28 U.S.C. § 566(a), the USMS contracts with a number of private security companies, including its co-defendant in this case, MVM.

MVM inherited an already-existing force of CSOs from its predecessor, United International Investigative Services ("UIIS"), that included a binding collective bargaining agreement ("CBA") that was reached between UIIS and the labor union for the appellants in this case. The CBA includes a provision that allows for the discharge of employees "for just cause only." The CBA further provides an informal procedure for resolving grievances and a three-step formal procedure to be followed if the informal procedure fails to produce acceptable results.

The contract between MVM and the USMS explicitly requires MVM to "provide qualified CSOs" for the "complete safety and security of judges, court personnel, jurors, witnesses, defendants, federal property and the public." As part of the determination of whether a CSO is "qualified," the USMS has substantial medical standards that a CSO must meet. In 2001, the USMS, which reserved by contract the right to incorporate revised medical standards, implemented a new physical examination for CSOs, adding to the list of medically disqualifying conditions use of a hearing aid, diabetes and certain heart conditions.

John Wilson, Frank Kryjer and Donald Jones ("the appellants") were all hired by UIIS under the terms of the CBA and had been employed for a substantial number of years (11, 5 and 17 years respectively) as CSOs. Each was labeled medically disqualified by the USMS. The USMS found Wilson medically unfit because he suffered from diabetes and faired poorly on cardiac stress tests. Both Kryjer and Jones were termed medically disqualified based on their use of hearing aids.

Prior to their termination, the appellants were provided with notice of their medical disqualification and an opportunity to respond with documentation from their own doctors regarding their medical status. If USMS found that additional documentation insufficient to respond to its concerns, it contacted MVM, provided it with each CSO's official Medical Review Form, and instructed MVM to terminate the appellants as CSOs and provide a "replacement package." At the time the appellants were termed medically disqualified and subsequently removed from their posts as CSOs, MVM had no alternative positions available in the Eastern District of Pennsylvania. Therefore, in addition to being removed from their posts as CSOs, the appellants were discharged "for just cause" under their employment contract with MVM.

After their discharge, the appellants pursued various avenues to grieve their termination. Wilson's union filed a grievance with MVM regarding his termination, which was denied at the informal stage of the grievance procedure. Neither Wilson nor his union pursued the grievance through the remaining steps. Wilson also sent a letter to Deborah Skeldon, contracting officer for the USMS, contending that he was not medically disqualified. Skeldon merely put the letter in a file. Wilson took no further steps with regard to the USMS.

After his termination, Kryjer's union also filed a grievance with MVM. As was the case with Wilson, Kryjer's grievance was denied at the informal stage and neither Kryjer nor his union took any steps to pursue the remaining grievance procedure. Neither made a complaint to the USMS.

Neither Jones nor his union pursued any remedies for his discharge until all three appellants filed formal charges against MVM with the Equal Employment Opportunity Commission ("EEOC") on July 29, 2003. Thereafter, the appellants were each issued a Notice of Right to Sue.

The appellants filed the current suit in the District Court on August 5, 2003, claiming violations of the RA, the ADA, the Age Discrimination in Employment Act, equal protection, and substantive and procedural due process, as well as several state law claims for breach of contract and concert of action. On April 1, 2004, the District Court granted the federal defendants' and MVM's motion to dismiss in part. Among its many rulings, the District Court held that it lacked subject matter jurisdiction to consider the appellants' RA claims against the federal defendants because, under the test articulated in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the USMS was not the appellants' "employer." The District Court also dismissed the appellants' procedural due process claim against the federal defendants, finding that the appellants had no property interest in continued employment with MVM and hence could not state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6).

After denying the appellants' motion for reconsideration, the District Court rejected the appellants' remaining claims on May 24, 2005, granting summary judgment to the federal defendants and MVM. The District Court further elucidated its reasons for dismissing the procedural due process claims against the federal defendants, stating that even if the appellants had a property interest in continued employment with MVM, the USMS was not the proximate cause of the loss of that property interest, or, alternatively, that the USMS had provided sufficient process. The District Court then proceeded to grant MVM summary judgment on the appellants' due process claim against it, because, even if MVM was an arm of the government, the appellants had failed to make use of the process that was available to them, thereby barring their claims. It also found that MVM did not violate the ADA because MVM did not believe the appellants were impaired within the meaning of the statute.

This appeal followed.

II

The appellants invoked the District Court's jurisdiction under 28 U.S.C. §§ 1331 and 1346. We exercise jurisdiction over their appeal from the District Court's dismissal and grant of summary judgment pursuant to 28 U.S.C. § 1291. We exercise de novo review over a District Court's dismissal. A.D. Bedell Wholesale Co. v. Phillip Morris, Inc., 263 F.3d 239, 249 n.25 (3d Cir. 2001). When reviewing dismissals under 12(b)(6), "we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002). We review a district court's grant of summary judgment de novo, Gordon v. Lewiston Hosp., 423 F.3d 184, 207 (3d Cir. 2005), applying the same test the district court would have used initially. Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III

The appellants' first argument on appeal is that the District Court improperly dismissed their RA claims for lack of jurisdiction. Section 501 of the RA allows recovery of monetary damages by employees of the federal government who have suffered disability discrimination. Much has been written on the issue of whether an individual who is technically employed by a private employer can also be a federal employee for the purposes of the RA. Courts have struggled over what test to adopt to determine whether this kind of joint employment existed. Some courts have adopted the "joint employment test," which we have employed in other contexts. See Nat'l Labor Relations Bd. v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117 (3d Cir. 1982); Graves v. Lowry, 117 F.3d 723 (3d Cir. 1997). The "joint employment test" asks whether "one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer." Browning-Ferris, 691 F.3d at 1123. Other courts, including the District Court in this case, have adopted the "hybrid test," based on the Supreme Court's decision in Reid, 490 U.S. 730, which balances thirteen factors to determine whether the federal agency had the right to control the "means and manner" of the employee's performance.

Most recently, the District Court for the District of Columbia adopted the use of the joint employer test and determined that CSOs are federal employees for the purposes of § 501. Int'l Union v. Clark, No. 02-1484, 2006 U.S. Dist. LEXIS 64449 (D.D.C. Sept. 11, 2006). In doing so, it has joined a number of other courts that have made similar determinations, albeit in unreported cases. See, e.g., Strolberg v. Akal Security, No. 03-cv-0004-s-DOC, 2005 US Dist. LEXIS 35373 (D. Id. Jan. 19, 2005); Gunnels v. Akal Security, Inc., No. V-02-132 (S.D. Tex. Feb. 19, 2004); Walton v. U.S. Marshall Service, No. 03-cv-01469 (N.D. Cal. Jan. 15, 2004). However, we need not reach the issue of which test to employ to determine whether the CSOs were federal employees or whether the District Court's determination was appropriate under the Reid test. The appellants' claims fail on exhaustion grounds.

* * *

Outcome: For the reasons set forth above, we will affirm the District Court’s dismissal of the appellants’ RA claims and due process claims against the federal defendants, and the appellants’ ADA and due process claims against MVM.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None