Opinion
No. C 03-01460 SI.
August 27, 2004
ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENTS
On August 27, 2004, the Court heard argument on defendants' Motion for Partial Summary Judgment and plaintiff's Cross-Motion for Partial Summary Judgment. Both parties move the Court for an order determining whether plaintiff was a federal employee for the purposes of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq. ("Rehabilitation Act"). Having carefully considered the arguments of the parties and the papers submitted, the Court hereby DENIES defendant's motion for partial summary judgment and GRANTS plaintiff's motion for partial summary judgment.
DISCUSSION
In October 2001, plaintiff underwent audiological testing. Results indicated that plaintiff had a hearing impairment in one ear. As a result, defendants concluded that those test results meant plaintiff is unable to localize the direction of sound. The reviewing physician, defendant Louis Chelton, M.D., failed to consider plaintiff for accommodation, i.e., use of a hearing aid, and, instead, concluded that plaintiff's disability made her a danger to herself and others. Id. at 4:3-4. A few months later, based on Dr. Chelton's report, the United States Marshal Service ("USMS") disqualified plaintiff from her position as a court security officer ("CSO"). Due to her disqualification, plaintiff's employment with AKAL was terminated.
Plaintiff now alleges that she has suffered and continues to suffer irreparable harm after being disqualified from the CSO position that she held for fourteen years. In her April 7, 2003 complaint, plaintiff initially pled her claim for relief under the Administrative Procedures Act (APA) and argued that this Court had jurisdiction over the alleged violation of the Rehabilitation Act under the jurisdictional provisions of the APA. At that time, plaintiff filed a motion for preliminary injunction under this theory of relief. This Court denied that motion, finding that the APA only allowed claims for which no adequate remedy at law was available elsewhere. Order Den. Pl.'s Mot. For Prelim. Inj. at 4:18-19. This Court found that the facts of the case suggested that plaintiff could bring her claims directly under § 501 of the Rehabilitation Act. Boyd v. U.S. Postal Service, 752 F. 2d 410 (9th Cir. 1985) (stating that in 1978 congress amended the Rehabilitation Act to include a private right of action under § 501 of the Act by enacting 29 U.S.C. § 794(a) (1)); Rivera v. Heyman, 157 F.3d 101, 103 (2nd Cir. 1998) ("As a federal employee, [plaintiff] has no remedy for employment discrimination under the ADA. See 42 U.S.C. § 12111(5)(B). His sole claim for discrimination on the basis of disability is under the Rehabilitation Act, if anywhere."). The Court granted plaintiff leave to amend her complaint. Order Den. Pl.'s Mot. For Prelim. Inj. at 6:4-6.
Plaintiff filed a second amended motion for preliminary injunction, again asking this Court to (i) enjoin defendants from administering the audiological testing standards for CSOs in a manner which plaintiff alleges violates the Rehabilitation Act and (ii) direct defendants to reinstate plaintiff in her position as a CSO. The Court granted in part and denied in part plaintiff's motion. In its order, however, the Court found that the USMS was the proper defendant because, among other things, "the USMS retained significant control over the terms, conditions, and duration of plaintiff's work . . . [and] plaintiff can only seek actual relief through the USMS because AKAL Security cannot reinstate her once she has been disqualified, rightly or wrongly, by the USMS." Jan. 15, 2004 Order, at 5:27, 6:7-8.
Defendants sought leave to file a motion for reconsideration, which this Court granted. Instead, defendants decided to file a notice of appeal before this Court could rule on the merits. Defendants subsequently dismissed the appeal, returning jurisdiction to this Court. Now defendants ask the Court to find that under any relevant legal test applied to the facts of this case, plaintiff cannot establish the federal government was her joint employer. Plaintiff opposes, arguing that defendants retained for themselves sufficient control of the terms and conditions of the CSOs.
Citing Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883-884 (9th Cir. 1980), plaintiff lays out a convincing argument in favor of finding that defendants are joint employers. TheLutcher court states, "The distinction between employment and an independent contractual affiliation depends upon the economic realities of the situation. The extent of the employer's right to control the means and manner of the worker's performance is a primary factor." Lutcher, id. at 883. As an initial matter, the USMS' Orientation Handbook for CSOs confirms that while on the job CSOs have the same power to enforce Federal law as the United States Marshals and that CSOs are "an integral part of the Judicial Security Team." See Decl. of Michael McCloud in Supp. of Defs.' Mot. for Summ. J. ("McCloud Decl."), Ex. 6 at 3. Plaintiff cites to the Service Agreement to demonstrate what she finds as clear evidence of the USMS's control over the CSOs. The Service Agreement includes the right to direct CSOs in the performance of some of their duties, including establishing routes and schedules for roving patrols, directing CSOs to perform armed escort services for judges and other designated individuals, and directing CSOs to perform any other court security related duties. McCloud Decl., Ex. 5 at 28-30. Further, and particularly relevant to the case at hand, the USMS made the unilateral decision to modify the Service Agreement to give itself the right to disqualify CSOs for failure to meet medical, physical or firearms qualifications, without the right of appeal. Decl. of Edith J. Benay, Ex. A at 82. Plaintiff was terminated as a result of this disqualification.
Consistent with the Court's prior Order on preliminary injunction, see Jan. 15, 2004 Order at 4-6, the Court finds that the USMS is a proper defendant for the purposes of the plaintiff's cause of action under the Rehabilitation Act. The Court came to that conclusion in its earlier Order after applying the "joint employer" and "economic realities" test to the facts as given. These subsequent motions offer additional factual information; however, the underlying legal questions remain the same. Applying these tests to the additional facts presented leads the Court to the same conclusion. On balance, the USMS is rightly deemed a joint employer of CSOs. The Court must stress, however, that this determination is specific to the unique relationship between the USMS and its security contractors, and the unique and highly consequential responsibility of contracted security officers. The CSOs are given the weighty responsibility for "the complete safety and security of judges, court personnel, jurors, witnesses, defendants, attorneys, federal property and the general public." CSO Contract Section C-5 (d)(1) (emphasis added). Consistent with this mandate, the CSOs' relationship with the USMS is significantly intertwined. As a result, a finding in defendants favor would unfairly allow the USMS affirmatively act behind the force of the contract, and unjustly limit plaintiff's access to the true source of her termination.
CONCLUSION
For the foregoing reasons and for good cause shown, the Court hereby DENIES defendants' motion for partial summary judgment and GRANTS plaintiff's motion for partial summary judgment on the joint employer issue. [docket # 88, 95].
IT IS SO ORDERED.