John WILSON; Frank Kryjer; Donald Jones, Appellants
v.
MVM, INC.; United States Marshal's Service, by and through its Director Benigno Reyna; Judicial Conference of the United States; United States Department of Justice.
No. 05-3204.
United States Court of Appeals, Third Circuit.
Argued September 14, 2006.
Filed January 29, 2007.
Andrew M. Smith (Argued), Andrew Smith & Associates, Lafayette Hill, PA, Attorney for Appellants, John Wilson, Frank Kryjer and Donald Jones.
Leslie Deak (Argued), Washington, DC, Attorney for Amicus-Appellant, United Government Security Officers of America International Union.
Jason M. Branciforte, Katherine A. Goetzl (Argued), Littler Mendelson, Washington, DC, Attorneys for Appellee, MVM, Inc.
Marleigh D. Dover, Eric Fleisig-Greene (Argued), 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.
Before FUENTES, FISHER and McKAY,* Circuit Judges.
FISHER, Circuit Judge.
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,
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. Philip Morris, Inc.,
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.,
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,
IV.
Section 794a(a)(1) of Title 29 provides the appropriate pathways by which a plaintiff may pursue an RA claim, adopting the procedures set forth in Title VII of the Civil Rights Act:
The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C.2000e-16), including the application of sections 706(f) through 706(k) (42 U.S.C.2000e-5(f) through (k)), shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take a final action on such complaint.
29 U.S.C. § 794a(a)(1). The incorporation of the Civil Rights Act includes the incorporation of the prerequisite exhaustion of administrative remedies. Before an aggrieved employee may bring an RA claim in court against a federal employer, he must file a claim with the EEOC. 29 C.F.R. § 1614.105. Only after filing this initial claim may he seek to vindicate his rights in front of a judge and jury.
As in other contexts, under the RA, exhaustion of administrative remedies serves to "promote administrative efficiency, `respect[ ] executive autonomy by allowing an agency the opportunity to correct its own errors,' provide courts with the benefit of an agency's expertise, and serve judicial economy by having the agency compile the factual record." Robinson v. Dalton,
The parties before us do not contend that exhaustion is not a requirement of the RA or that the appellants filed the appropriate claims against the USMS with the EEOC. It is clear from the statute and the law of this Court that a plaintiff must exhaust administrative remedies before bringing a claim under the RA. Spence v. Straw,
The parties' arguments bring to bear the distinction between prudential exhaustion and jurisdictional exhaustion. A prudential exhaustion requirement is generally judicially created, aimed at respecting agency autonomy by allowing it to correct its own errors. Robinson,
In Zipes v. Trans World Airlines, Inc., the Supreme Court ruled that timely exhaustion of Title VII administrative remedies was not jurisdictional.
Although the district court in this case described its preliminary evaluation as "jurisdictional," this court has previously determined that questions of whether a plaintiff has timely exhausted the administrative remedies in Title VII actions are in the nature of statutes of limitation. They do not affect the district court's subject matter jurisdiction.
Robinson,
A number of our sister circuits who have commented upon the nature of Title VII exhaustion requirements have read Zipes narrowly, finding that it applies only to cases involving failure to timely exhaust. While failure to timely exhaust is prudential, they have held that complete failure to exhaust is a jurisdictional bar. See Sizova v. Nat'l Inst. of Standards & Tech.,
The federal defendants argue that our cases follow the reasoning of these circuits, and that we should see the exhaustion requirement as jurisdictional. They argue that Robinson and Hornsby dealt "solely with whether exhaustion was timely, not whether an employee had failed to exhaust administrative remedies at all." However, the federal defendants' argument fails to take into consideration this Court's decision in Waiters v. Parsons,
Therefore, we have clearly rejected a distinction between failure to timely exhaust and complete failure to exhaust in Title VII cases. We said as much in Robinson: "Moreover, in Title VII cases courts are permitted in certain limited circumstances to equitably toll filing requirements, even if there has been a complete failure to file, which necessarily precludes characterizing such requirements as jurisdictional." Robinson,
In its recent opinion in Spinelli, the D.C. Circuit, while recognizing the nonjurisdictional nature of Title VII's exhaustion requirements, still found that failure to exhaust administrative remedies in the RA context was jurisdictional. The D.C. Circuit pointed out that § 794a(a)(1) states that the statute "limits judicial review to employees `aggrieved by the final disposition' of their administrative `complaint.'" Spinelli v. Goss,
We are unpersuaded by this line of argument. As an initial matter, the fact that an exhaustion requirement is contained within statutory language does not mandate its jurisdictional nature. In Buck v. Hampton Township School District,
However, merely because exhaustion requirements are prudential does not mean that they are without teeth. Even prudential exhaustion requirements will be excused in only a narrow set of circumstances. At oral argument, appellants claimed that this case presented one of those narrow sets of circumstances and argued for application of the futility exception. In order to invoke the futility exception to exhaustion, a party must "provide a clear and positive showing" of futility before the District Court. D'Amico,
V.
In addition to claims under the RA, the appellants also pursued claims against the federal defendants and MVM under 42 U.S.C. § 1983, claiming a violation of procedural due process. The appellants claim that the provision of their CBA that prohibited termination without just cause gave them a constitutionally protected property interest of which they were deprived when the USMS found them medically disqualified. The District Court dismissed the claim as to the federal defendants based on its finding that, even if the appellants had a protected property interest, the USMS was not the proximate cause of the loss of that property interest, or, alternatively, they were granted sufficient process. As to MVM, the District Court found that, even if MVM was considered an arm of the government, the appellants failed to take advantage of the process provided to them by the CBA.
As correctly noted by the District Court, the appellants' due process claims against MVM are without merit. Before bringing a claim for failure to provide due process, "a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate." Alvin v. Suzuki,
"Where access to procedure is absolutely blocked or there is evidence that the procedures are a sham, the plaintiff need not pursue them to state a due process claim." Id. at 118. Aside from letters denying their attempts at informal review, the appellants have failed to provide clear evidence that use of the procedures articulated in the CBA would have been futile or was otherwise "absolutely blocked." Id. For these reasons, the District Court rightly granted MVM summary judgment on the appellants' due process claims.
The appellants' claims against the federal defendants cannot be so easily disposed of. While not explicitly reaching the issue of whether the appellants had a constitutionally protected property interest, in its opinion on the appellants' motion to reconsider, the District Court granted summary judgment for the federal defendants based on its finding that the USMS's determinations of medical disqualification did not proximately cause MVM to terminate appellants' employment or, in the alternative, that the USMS provided appellants sufficient process. We find that the appellants had a protected property interest that was affected by the USMS. However, we will affirm the District Court based on the determination that the USMS provided the appellants with sufficient process.
In order to bring a claim for violation of procedural due process based on discharge from a job, a claimant must prove that he had a constitutionally protected property right in continued employment. Cleveland Bd. of Ed. v. Loudermill,
While we have not spoken on this specific question, a number of courts to have addressed the issue have found that private employees covered by a just cause provision are entitled to due process protections when the government interferes with their employment. Basing their decisions on the Supreme Court's reasoning in cases such as Greene v. McElroy,
In Stein, a bus driver employed by a private company was terminated after the Board of Education determined that he lacked good moral character, as required by the private company's contract with the Board of Education. Stein, like the appellants in this case, had a "good cause" provision in his contract with his private employer. The Second Circuit found that this "good cause" provision coupled with the Board of Education's direct influence on Stein's firing created a sufficient property interest. "The `good cause' for the discharge was supplied by the state, which by disqualifying the employee foreclosed him from doing his job. Accordingly, Stein's `claim of entitlement' arose from his contract with [the bus company.]" Id. at 17. After further finding that Stein received limited notice and an insufficient hearing before the Board of Education when it determined his moral fitness, the Second Circuit held that Stein had presented an appropriate claim for relief under the Fourteenth Amendment's procedural due process requirement. Id. We find the reasoning of this case persuasive and believe that a private employment contract with a "just cause" termination clause can create a constitutionally protected property interest. Applying that reasoning to this case, we find that the appellants had a property interest in their continued employment with MVM. The CBA under which the appellants worked contained a clause that allowed MVM to discharge them "for just cause only." MVM has specifically stated that it discharged the appellants because of the USMS's determination that they were medically disqualified. Thus, just as in Stein, "[t]he [just cause] for the discharge was supplied by the state, which by disqualifying the employee[s] foreclosed [them] from doing [their] jobs." Id.
The federal defendants argue that even if the appellants did have a property interest in continued employment with MVM, it was not the USMS's determination that proximately caused the deprivation of that property interest. They argue that the USMS's medical determination was, at best, an indirect cause of the appellants' termination, as MVM could have employed them in some other capacity than CSOs. This argument fails to take into consideration that MVM had inherited the C SO workforce from the previous private employer and that the appellants had been working as CSOs for far longer than MVM had the contract with the USMS. As in Greene, where the government's refusal to grant an engineer security clearance led directly to his firing by a private engineering contractor, the USMS's determination that appellants were medically disqualified led directly to their termination. Greene,
As the appellants have shown that they have a property interest, we must determine whether there was sufficient process afforded before they were deprived of that property interest. There is no rote formula for sufficient protections under the Due Process Clause. Rather, "due process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge,
In the opinion accompanying its May 24, 2005 grant of summary judgment, the District Court reiterated that the USMS provided the appellants fair notice that they may be medically disqualified and provided them with an opportunity to respond and present evidence to the contrary. The District Court's conclusions are correct. The appellants had a clear interest in continued employment, which must be balanced against the government's interest in providing healthy, physically qualified security to protect its court houses and employees. After the appellants were termed medically disqualified, but before they were terminated, they were provided with notice of their medical disqualification and offered an opportunity to respond with medical documentation from their own doctors regarding their ability to perform their positions. While this is not a traditional hearing, the process afforded the appellants is sufficient given the balance of their interest in maintaining employment and the government's interest in security. A more rigorous process would not significantly enhance the accuracy of the medical qualification process. Mathews,
VI.
The appellants' final contention that the District Court erred in granting MVM summary judgment on the appellants' ADA claims is without merit. In order to prevail on a claim under the ADA, a claimant must prove that he is disabled within the meaning of the statute, proving that he has a physical impairment that limits a major life activity, has a record of such an impairment, or is "regarded as" having such an impairment. 42 U.S.C. § 12102(2); 29 U.S.C. § 705(20)(B). The appellants cannot prove that their impairments are not mitigated by corrective measures, thus barring a claim that they have impairments that limit a major life activity. Sutton v. United Air Lines, Inc.,
The undisputed evidence shows that MVM did not consider the appellants in any way disabled and would have reinstated them immediately if the USMS would have determined the appellants were medically qualified. As a matter of law, MVM did not regard the appellants as impaired within the meaning of the ADA.
VII.
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.
Notes:
Notes
The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth Circuit, sitting by designation
This accords with our reasoning in cases involving the state action doctrine, where a state's involvement in private action in a highly regulated industry can rise to the level of "state action" for a procedural due process claimSee Fitzgerald v. Mountain Laurel Racing, Inc.,
Further, we agree with the District Court that the appellants could not have recovered monetary damages under their § 1983 claim against the federal defendants. They would have been limited to declaratory and prospective injunctive relief