Case Information
*4 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 *7 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. Phillip 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.
, 691 F.2d
1117 (3d Cir. 1982);
Graves v. Lowry
,
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.
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 *11 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
*12
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
, 107 F.3d at 1020. Because of its
nature, prudential exhaustion can be bypassed under certain
circumstances, including waiver, estoppel, tolling or futility.
See id.
at 1021-22;
D’Amico v. CBS Corp.
,
In Zipes v. Trans World Airlines, Inc. , the Supreme Court ruled that timely exhaustion of Title VII administrative remedies was not jurisdictional. 455 U.S. 385, 393 (1982). It is a *13 “requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Id. This Court has repeatedly held the same. In Robinson , we stated:
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 , 107 F.3d at 1021; see also Hornsby v. U.S. Postal Service , 787 F.2d 87, 89 (3d Cir. 1986) (“The time limits in Title VII are in the nature of statutes of limitation. They do not affect the district court’s subject matter jurisdiction.”).
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 Sizovah v. Nat’l Inst. of Standards &
Tech.
, 282 F.3d 1320, 1325 (10th Cir. 2002) (distinguishing
between failure to timely exhaust and complete failure to
exhaust, finding the latter to be a jurisdictional bar);
Davis v.
North Carolina Dep’t of Corr.
,
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 , 446 F.3d 159, 162 (D.C. Cir. 2006). Accordingly, because “a court may not read futility or other exceptions into statutory exhaustion requirements” the court found the exhaustion requirement was jurisdictional. Id.
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 , 452 F.3d 256 (3d Cir. 2006), we found that the exhaustion requirements of the ADA were prudential, despite the fact that they were statutory prerequisites to filing suit. Id. at 262. Further, it seems unlikely that, although explicitly adopting Title VII’s exhaustion requirements, Congress intended to change their nature from prudential to jurisdictional. We therefore find that Waiters is controlling, and the exhaustion requirements of the RA are prudential.
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
*16
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 *17 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 *18 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
, 470
U.S. 532, 538 (1985). “To have a property interest in a job . . .
a person must have more than a unilateral expectation of
continued employment; rather, she must have a legitimate
entitlement to such continued employment.”
Elmore v. Cleary
,
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
, 360 U.S.
474 (1959), these courts have determined that “[w]here the
independent source of a property interest is a private contract,
the state cannot transgress on the claim of entitlement to
continued employment without due process of law.”
Stein v. Bd.
of Ed.
, 792 F.2d 13, 16 (2d Cir. 1986);
see also Merritt v.
Mackey
,
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 *20 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 CSO workforce from the previous private employer
and that the appellants had been working as CSOs for far longer
*21
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.
,
their § 1983 claim against the federal defendants. They would have been limited to declaratory and prospective injunctive relief.
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
[1] 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 claim.
See
Fitzgerald v. Mountain Laurel Racing, Inc.
,
[2] Further, we agree with the District Court that the appellants could not have recovered monetary damages under