Opinion
Civil Action No. 04-2541.
November 9, 2004
MEMORANDUM
Plaintiff John McGovern, a former Court Security Officer ("CSO"), challenges his discharge for failure to meet medical and physical standards that were established by the Judicial Conference of the United States and implemented by defendant, the United States Marshall's Service ("USMS"). The plaintiff alleges that the USMS has violated: (1) his right to equal protection, substantive due process, and procedural due process under the Fifth Amendment; (2) the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; and (3) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.. He also alleges wrongful "concert of action/interference with contractual relations." Before the court is the motion of the defendant USMS to dismiss the complaint under Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction, respectively.
The Judicial Conference of the United States establishes policies for the federal courts. See 28 U.S.C. § 331.
In considering a motion to dismiss for failure to state a claim upon which relief can be granted, we accept all well-pleaded facts in the complaint as true. In re Rockefeller Ctr. Prop., Inc. Secs. Litig., 311 F.3d 198, 215 (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., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A complaint is properly dismissed only if "it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46-47 (1957).
The alleged facts are in many ways identical to those in two other actions currently before this Court. Wilson v. MVM, Inc., Civ. A. No. 03-4514 (E.D. Pa. filed Aug. 5, 2003); Leitch v. MVM, Inc., Civ. A. No. 03-4344 (E.D. Pa. filed July 25, 2003). As in those cases, the plaintiff here is a CSO who has worked in this courthouse pursuant to a labor contract between the USMS and the other defendant in this action, a private security company called MVM, Inc.("MVM"). A collective bargaining agreement ("CBA") between MVM and the plaintiff's labor union, United Government Security Officers of America, governs certain terms of the plaintiff's employment.
The labor contract under which the plaintiff has worked has involved different security companies in the past, but as of 2001, the labor contract is between the USMS and MVM.
In or around 2001, the USMS implemented new annual physical examination standards for CSOs pursuant to a mandate given it by the Judicial Conference of the United States. The USMS advised MVM that the CSOs were required to undergo examinations in conformity therewith. The plaintiff was examined under the updated standards and failed to meet them. As a result, the USMS instructed MVM to terminate the plaintiff's employment.
The plaintiff's claims under the Rehabilitation Act and the ADEA require us to determine whether the CSOs are "employees" of the USMS.See 29 U.S.C. § 623(a)(1)-(3); Williams v. Philadelphia Hous. Auth. Police Dept., 380 F.3d 751, 771-72 (3d Cir. 2004). We have previously addressed this issue in both Wilson and Leitch, which involved virtually identical contracts and factual allegations. Wilson v. MVM, Inc., 2004 WL 765103, at *2-8 (E.D. Pa. Apr. 1, 2004), vacated in part, 2004 WL 1119926 (E.D. Pa. May 18, 2004) and Leitch v. MVM, Inc., 2004 WL 1638132, at *4-5 (Jul. 22, 2004). In determining whether the plaintiff CSO's in Wilson andLeitch were employees of the USMS, we considered the terms of the undisputed labor contract and applied the thirteen factor test outlined in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-752 (1989). Wilson, 2004 WL 765103, at *2-8; Leitch, 2004 WL 1638132, at *4-5.
The following reasoning from both cases 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 plaintiff 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 plaintiff, did not pay [him] a salary or withhold taxes, and did not provide [him] 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 plaintiff were independent contractors vis a vis the federal government. See Fischer v. United States, 441 F.2d 1288, 1291 (3d Cir. 1971). Finally, the plaintiff . . . [is] 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 plaintiff [is an] employee of MVM. The relationship of MVM and the plaintiff to the federal government is one of independent contractor.Wilson, 2004 WL 765103, at *7; Leitch, 2004 WL 1638132, at *4. The plaintiff here is likewise an employee of MVM and an independent contractor of the USMS. Thus, his claims against the USMS for violations of the ADEA and the Rehabilitation Act must be dismissed for failure to state a claim upon which relief can be granted.
The plaintiff also brings constitutional claims under the Fifth Amendment against the USMS alleging denial of equal protection, substantive due process, and procedural due process. Claims against United States agencies that seek monetary damages for constitutional violations must be dismissed for lack of subject matter jurisdiction.Federal Deposit Ins. Co. v. Meyer, 510 U.S. 471, 486 (1994). Thus, insofar as the plaintiff seeks monetary damages, these three claims must be dismissed.
This court does have jurisdiction to the extent that the plaintiff seeks injunctive and declaratory relief on his constitutional claims against the USMS. 5 U.S.C. § 702. Plaintiff alleges that he was denied equal protection on the basis of both age and disability. While his claim is not clearly stated, it appears that it is grounded on the fact that he was subjected to an examination of his physical and medical condition and was terminated because he failed to pass it. Discrimination on the basis of age and disability is reviewed under the rational basis test. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000); Bd. of Trs. of the Univ. of Alabama v. Garret, 531 U.S. 356, 366-67 (2001). "[W]hen conducting rational basis review, `we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government's] actions were irrational.'" Kimel, 528 U.S. at 84 (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979) (alteration in original)). "Under this minimal standard of review, [government action] is accorded `a strong presumption of validity.'"DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1999) (quoting Heller v. Doe, 509 U.S. 312, 319-320 (1993)).
We addressed this issue in Wilson and utilize the reasoning of that case:
The CSO's have responsibility to provide security for various federal courthouses in the Third Circuit. Age and physical fitness to do the job are inextricably related. It is an unfortunate reality that physical fitness declines with age.
. . .
[Also, with regard to disability], the USMS could rationally conclude that CSO's with physical and medical impairments would undermine the effective security at the federal courthouses.Wilson, 2004 WL 765103, at *8-9. As in Wilson, we find that a rational explanation exists for any differential treatment the plaintiff may have received with regard to his physical/medical examination. The plaintiff's equal protection claim seeking injunctive and declaratory relief must be dismissed for failure to state a claim upon which relief can be granted.
Plaintiff's procedural due process claim for nonmonetary relief against the USMS may proceed only if he alleges that government action deprived him of a constitutionallyprotected liberty or property interest. See Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). The plaintiff has pleaded that the USMS's implementation of new medical standards, termination of plaintiff's employment, and denial of plaintiff's ability to challenge the termination deprived him of a property interest in his employment. This alleged property interest in his employment must derive from a legitimate claim of entitlement to it, as opposed to a unilateral expectation. Id. at 577. Property interests are not created by the Constitution, but by independent sources such as state law. Id. Under Pennsylvania law, a provision in an employment contract that states that an employee may only be terminated for "just cause" gives rise to a property interest. Brown v. Trench, 787 F.2d 167, 170 (3d Cir. 1986) (citations omitted).
The CBA between the plaintiff's labor union and MVM reads, "[t]he Employer shall have the right to discharge, discipline, or suspend an employee for just cause." Defs.' Mot. to Dismiss, Doc. 4, 8/9/04, Ex. A at 8. We found that a similar provision in the CBA in Wilson created a property interest. Wilson, 2004 WL 1119926, at *3. The CBA in this action contains amendments not present in the CBA in Wilson. After careful review of these amendments, we find they do not address the just cause provision of the CBA and have no bearing on our determination that a property interest exists. At this point in the proceedings it is not "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46 (1957). Therefore, we will deny the motion of the USMS under Rule 12(b)(6) to dismiss the procedural due process claim for injunctive and declaratory relief.
The plaintiff's substantive due process claim seeking non-monetary relief can only be sustained if "the property interest being deprived is `fundamental' under the Constitution." Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 142 (3d Cir. 2000). Our Court of Appeals has held that public employment is not a fundamental property interest entitled to substantive due process protection. Id. at 142. Therefore, we shall dismiss the plaintiff's substantive due process claim seeking injunctive and declaratory relief for failure to state a claim upon which relief can be granted.
Finally, the plaintiff brings a claim against the USMS for "concert of action/interference with contractual relations." The Federal Tort Claims Act denies this court jurisdiction over "[a]ny claim arising out of . . . interference with contract rights. 28 U.S.C. § 2680(h). Therefore, this claim will be dismissed for lack of subject matter jurisdiction.
ORDER
AND NOW, this 9th day of November, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of defendant, United States Marshall's Service, by and through its Director, Benigno Reyna, to dismiss plaintiff's complaint (Doc. # 4) is GRANTED in part and DENIED in part;
(2) the motion is GRANTED with respect to Counts I and II to the extent that the plaintiff seeks injunctive and declaratory relief, for failure to state a claim;
(3) the motion is GRANTED with respect to Counts I, II, and III to the extent that the plaintiff seeks monetary damages, for lack of subject matter jurisdiction;
(4) the motion is GRANTED with respect to Counts IV and VI for failure to state a claim;
(5) the motion is GRANTED with respect to Count IX for lack of subject matter jurisdiction; and
(6) the motion is DENIED with respect to Count III to the extent the plaintiff seeks injunctive and declaratory relief.