                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2007

Wilson v. MVM Inc
Precedential or Non-Precedential: Precedential

Docket No. 05-3204




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                                         PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                       No. 05-3204


  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


      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                  (D.C. No. 03-cv-04514)
       District Judge: Honorable Harvey Bartle, III


             Argued September 14, 2006
Before: FUENTES, FISHER and McKAY,* Circuit Judges.


      *
       The Honorable Monroe G. McKay, United States Circuit
Judge for the Tenth Circuit, sitting by designation.
                  (Filed January 29, 2007)

Andrew M. Smith (Argued)
Andrew Smith & Associates
644 Germantown Pike, Suite 1-B
Lafayette Hill, PA 19444
      Attorney for Appellants, John Wilson,
      Frank Kryjer and Donald Jones

Leslie Deak (Argued)
1200 G Street, N.W., Suite 800 (#099)
Washington, DC 20005
       Attorney for Amicus-Appellant,
       United Government Security Officers
       of America International Union

Jason M. Branciforte
Katherine A. Goetzl (Argued)
Littler Mendelson
1150 17th Street, N.W., Suite 900
Washington, DC 20036
        Attorneys for Appellee, MVM, Inc.

Marleigh D. Dover
U.S. Department of Justice
10th and Pennsylvania Avenue, N.W., Room 3127
Washington, DC 20530




                              2
Eric Fleisig-Greene (Argued)
U.S. Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W., Room 7214
Washington, DC 20530
       Attorneys for Appellees, U.S. Marshal
       Service, etc., Judicial Conference of the United
       States and U.S. Department of Justice




                 OPINION OF THE COURT


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.



                               3
                                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.

                                4
       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


                               5
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).

                                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

                                7
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

                               8
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.
                               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

                                9
       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, 107 F.3d 1018, 1020 (3d Cir. 1997) (quoting Heywood
v. Cruzan Motors, Inc., 792 F.2d 367, 370 (3d Cir. 1986)).
Therefore, a court need not pass upon the merits of a plaintiff’s
substantive claim until it satisfies itself that the claim is properly
before it, including determining whether the plaintiff properly
exhausted administrative remedies.
       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

                                 10
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, 54 F.3d 196, 201 (3d Cir. 1995); see
also Freed v. Consolidated Rail Corp., 201 F.3d 188, 191 (3d
Cir. 2000). It is also clear that the appellants did not fully
exhaust their administrative remedies. Rather, the parties
dispute the nature of the exhaustion requirement. At oral
argument the appellants claimed that any further use of the
administrative process would have been futile; the federal
defendants have claimed that exhaustion is a jurisdictional
requirement that is not subject to a futility exception.
        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., 297 F.3d 287, 293
(3d Cir. 2002). Jurisdictional exhaustion, however, is a
prerequisite to a court’s subject matter jurisdiction. Regardless
of whether there is a compelling reason a plaintiff failed to
exhaust, a court is without subject matter jurisdiction to hear the
plaintiff’s claim. Nuhuis v. Reno, 204 F.3d 65, 69 (3d Cir.
2000). The question that now confronts us is whether the RA’s
exhaustion requirement is prudential or jurisdictional, thus
barring appellants’ claims even in the face of futility claims.
        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

                                11
“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., 48 F.3d 134, 137 (4th Cir. 1995)
(“Before a federal court may assume jurisdiction over a claim
under Title VII, however, a claimant must exhaust the
administrative procedures . . . .”); Bullard v. Sercon Corp., 846
F.2d 463, 468 (7th Cir. 1988) (internal citations omitted) (“But

                               12
Title VII's strong policy of encouraging conciliation, and of
giving states that have anti-discrimination laws a chance to deal
with discrimination before federal intervention, argues for
treating Title VII's exhaustion requirements as jurisdictional.”).
        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, 729 F.2d 233 (3d Cir.
1984).      In that case, the plaintiff did not pursue any
administrative remedies before filing her suit. Id. at 236. While
we ultimately disposed of the case on different grounds, we
clearly articulated the non-jurisdictional nature of administrative
remedies. Based on the Supreme Court’s holding in Zipes, we
stated that the plaintiff, who had pursued no administrative
remedies, was not jurisdictionally barred. Rather, should we
decide on the exhaustion grounds alone, we would have to
remand to the district court to consider the doctrines of waiver,
estoppel and tolling. Id. at 236-37.
        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,
107 F.3d at 1021; see also Williams v. Runyon, 130 F.3d 568,

                                13
573 (3d Cir. 1997) (“In Title VII actions, failure to exhaust
administrative remedies is an affirmative defense in the nature
of statute of limitations.”).
        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

                                14
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, 297 F.3d at 293.
This is the first time the appellants have made this futility
argument with regard to their claim against the federal
defendants. In their complaint, the appellants alleged that they
had attempted to appeal their termination and, because of a poor
response to their attempts, any further efforts to exhaust
administrative remedies would have been futile. While it is true
that the appellants made some attempts, their failed attempts
were directed at MVM, not the USMS. The appellants never
brought a claim against the USMS before the EEOC and have
made no argument as to why they failed to do so. They have not
brought forward any evidence of futility, let alone the “clear and
positive showing” we require. Id. at 293. Therefore, the
District Court’s dismissal of their RA claims was appropriate.
                               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

                               15
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, 227 F.3d 107, 116 (3d Cir. 2000).
Even if we were to determine that MVM was an arm of the
government, the appellants’ due process claims against MVM
must fail because they failed to take advantage of the grievance
process provided to them in the CBA. As in Alvin, these
appellants were provided a multi-step grievance process. The
CBA required first that terminated employees seek an informal
review of their termination. If the informal review was not
successful, terminated employees could proceed up through
three additional steps and then to arbitration. After being
unsuccessful at the first step, however, Wilson and Kryjer
ceased pursuing their claims. Jones filed no grievance at all.
Because there is process on the books that “appears to provide
due process” and the appellants failed to take advantage of that
process, they cannot now “use the federal courts as a means to
get back what [they] want[].” Id.
       “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

                                16
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,
399 F.3d 279, 282 (3d Cir. 2005) (citing Bd. of Regents v. Roth,
408 U.S. 564, 577 (1972)). In the governmental context, while
at-will employment is not generally considered a property
interest, see Thomas v. Hammonton, 351 F.3d 108, 113 (3d Cir.

                               17
2003), employment contracts that contain a “just cause”
provision create a property interest in continued employment.
See Kelly v. Sayerville, 107 F.3d 1073, 1077 (3d Cir. 1997).
The question currently before us is whether a just cause
provision in a contract with a private employer creates a
property interest in that position with which the government
cannot interfere without due process of law.
       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, 827 F.2d 1368 (9th Cir. 1987).
       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

                                18
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

                                19
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,
360 U.S. at 483.1
       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, 424 U.S. 319, 334 (1976). At a minimum,
due process requires notice and a hearing. Reichley v. Pa. Dept.
of Agriculture, 427 F.3d 236, 247 (3d Cir. 2005). However,
when that notice and hearing must be provided and how
intensive the hearing must be is a determination that depends on



       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., 607 F.2d 589, 596-
99 (3d Cir. 1979) (holding under the state action doctrine that
state racing commission’s findings that a driver was violating
state racing laws was the impetus behind private racetrack
cancelling his lease, implicating the due process clause and
requiring the state to provide notice and hearing before making
such determinations).

                               20
the balancing of three interests: (1) the private interest at stake,
(2) the risk of error in the procedure used compared with the
degree of improved accuracy that additional procedures would
provide, and (3) the government’s interest. Mathews, 424 U.S.
at 334-35.
        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, 424 U.S. at 335. Therefore, the
District Court correctly determined that the appellants were
provided sufficient process.2



       2
       Further, we agree with the District Court that the
appellants could not have recovered monetary damages under

                                21
                                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., 527 U.S. 471, 487 (1999). Therefore, they can only
prevail if they show that MVM “regarded” them as being
impaired. To meet this standard, MVM must have “mistakenly
believed that [the appellants] have a physical impairment that
substantially limits one or more major life activities” or
“mistakenly believed that an actual non-limiting impairment
substantially limits one or more major life activities.” Id. at 489.
It is insufficient for the appellants to show that MVM thought
they were, in some way, impaired. Rather, the appellants must
show that MVM thought they were disabled “within the
meaning of the statute.” Rinehimer v. Cemcolift, Inc., 292 F.3d
375, 381 (3d Cir. 2002).




their § 1983 claim against the federal defendants. They would
have been limited to declaratory and prospective injunctive
relief.

                                22
       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.




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