IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN MCGOVERN : CIVIL ACTION

:

v. :

:

MVM, INC., et al. : NO. 04-2541

MEMORANDUM

Bartle, C.J. February 19, 2008

Plaintiff John McGovern, a former Court Security

Officer ("CSO") charged with protecting the United States

courthouse in Philadelphia, has sued MVM, Inc. ("MVM"), his

former employer, as well as the United States Marshals Service

("USMS"). He contends that he was wrongfully terminated after he

was medically disqualified from the CSO position by the USMS and

subsequently terminated by MVM. His First Amended Complaint

brings three counts alleging violations of: (1) his procedural

due process rights under the Fifth Amendment to the United States

Constitution by both MVM and the USMS; (2) the Rehabilitation Act

("RA"), 29 U.S.C. § 701, et seq., by the USMS; and (3) violations

of the Americans with Disabilities Act ("ADA"), 42 U.S.C.

§ 12101, et seq., by MVM. Before the court are the motions of

MVM and the USMS for summary judgment. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); In re Flat

Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004).

Case 2:04-cv-02541-HB Document 52 Filed 02/19/08 Page 1 of 22
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I.

Congress has given the USMS the obligation to provide

for the security of the United States Courts. 28 U.S.C.

§ 566(a). One of the ways in which the USMS meets this

obligation is to contract with a number of private security

companies, including MVM. From October 1, 2001 to October 1,

2006, MVM held the contract to provide CSO's in each of the

federal courthouses in the Third Circuit. 

Beginning in January, 2001, the USMS implemented

uniform medical standards and procedures for the CSO position. 

The history of the decision to implement these medical

requirements, as well as the relationship between the CSO's, MVM

and the USMS, has been documented in detail in a number of

earlier opinions. E.g. Wilson v. MVM, Inc., 2005 WL 1231968

(E.D. Pa. 2005). We will not repeat that history here but merely

reiterate that as a result of the new medical standards each CSO

is required to have an annual medical examination to determine if

he or she meets the medical qualification for the CSO position. 

The medical records from that examination are sent to a reviewing

physician employed by the USMS. That physician either accepts

the CSO as medically qualified or informs the CSO that his or her

status is "not medically qualified." After receiving a "not

medically qualified" letter, the CSO has 30 days to submit any

additional medical documentation before a final determination is

made.

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Plaintiff McGovern began working as a CSO in the

federal courthouse in Philadelphia in August, 1995. He became an

MVM employee when that company took over the CSO contract for the

Third Circuit on October 1, 2001. He submitted to a required

annual medical examination on January 17, 2002. In March of that

year, a USMS physician determined that McGovern was "not

medically qualified" to work as a CSO, and gave McGovern thirty

days to submit additional medical information, particularly with

respect to McGovern's chronic obstructive pulmonary disease

("COPD"). In response to the USMS's instructions, McGovern went

to his personal pulmonary physician, Dr. Earl King, for the

requested follow-up testing and timely submitted additional

medical information in the form of a report from Dr. King. On

December 12, 2002, Dr. J.V. Barson, the USMS reviewing physician

concluded that McGovern was medically disqualified from

performing the essential functions of the CSO position as a

result of his lung disease and problems with his blood oxygen

levels. The Contracting Officer of the USMS sent MVM a letter to

that effect on January 8, 2003. The next day MVM removed

McGovern from the USMS contract and terminated him. 

McGovern brought this suit challenging his termination

in June, 2004. The USMS and MVM each filed a motion to dismiss. 

This court granted those motions in part, dismissing certain of

McGovern's claims against each defendant. McGovern v. MVM, Inc.,

2004 WL 2554565, *1 (E.D. Pa. Nov. 9, 2004). On July 18, 2005,

while the case was still in the discovery phase, the court placed

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the matter in suspense pending a decision from the Court of

Appeals in Wilson v. MVM, 475 F.3d 166 (3d Cir. 2007). Wilson

presented some of the same issues facing the court in the instant

matter. Once Wilson was decided, plaintiff filed an Amended

Complaint and the parties were given the opportunity to conclude

discovery. As noted above, MVM and the USMS now move for summary

judgment. 

II.

McGovern first alleges that the USMS violated his

procedural due process rights under the Fifth Amendment when its

reviewing physician found him to be medically disqualified. He

contends that he should have received a hearing and accuses the

USMS reviewing physician of failing to review the medical report

of Dr. King, McGovern's personal physician. 

The Wilson decision is clearly dispositive of this

claim. 475 F.3d 166. There, three CSO's employed by MVM and

found to be medically disqualified by the USMS brought suit in

which they contended the USMS violated their due process rights. 

The Wilson court concluded that the CSO's had a constitutionally

protected property interest in their employment and were entitled

to procedural due process, the basic requirements of which are

notice and an opportunity to be heard. Id. at 177-78. To

determine the precise contours of the notice and hearing required

before the CSO's could be found medically disqualified, the court

balanced the plaintiff's interest in continued employment against

the government's interest in "providing healthy, physically

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qualified security to protect its court houses and employees." 

Id. at 178-79. The court then examined "the risk of error in the

procedure used compared with the degree of improved accuracy that

additional procedures would provide." Id. citing Mathews v.

Eldridge, 424 U.S. 319, 334-35 (1976). 

The Wilson court held that the CSO's were accorded

sufficient process under the Due Process Clause and affirmed this

court's decision granting the motion of the USMS and other

federal defendants for summary judgment on this question. Id. at

179. The court explained: 

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. 

Id. at 178-79, citing Matthews, 424 U.S. at 335.

The relevant facts of Wilson are identical to the facts

of the present case. McGovern admits that he was provided with a

letter informing him of his medical disqualification and that he

was afforded the opportunity to submit additional medical

documentation before a final decision was made. McGovern did, in

fact, submit such documentation from Dr. King. He cites to no

evidence supporting his contention that the USMS reviewing

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physician did not consider Dr. King's report. To the contrary,

the medical disqualification letter signed by the USMS reviewing

physician references information which originated in Dr. King's

report, namely, "the Pulmonary Function Test results, the Blood

Gas results, the Oximetry Walk test results, and [the fact that

McGovern] continu[ed] to smoke." Thus, the record is

uncontroverted that the USMS reviewing physician considered the

additional information supplied by Dr. King before he made his

final determination as to McGovern's medical qualifications for

the CSO position. 

The Court of Appeals in Wilson clearly ruled that the

medical review process employed by the USMS affords sufficient

notice and opportunity to be heard so as to satisfy the

requirements of the Constitution. Accordingly, we will grant the

USMS's motion for summary judgment as to McGovern's due process

claims against it.

McGovern additionally brings a claim against the USMS

for violations of the Rehabilitation Act of 1973, as amended. 

The RA provides that: 

No otherwise qualified individual with a

disability in the United States ... shall,

solely by reason of her or his disability, be

excluded from participation in, be denied the

benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance or

under any program or activity conducted by

any Executive agency ....

29 U.S.C. § 794(a). The RA incorporates the substantive

liability standards of the Americans with Disabilities Act (ADA). 

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Id. at § 794(d). Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir.

1996). To make out a prima facie case of discrimination under

the ADA and thus under the RA, a plaintiff must show that he: 

(1) is disabled within the meaning of the ADA; (2) is otherwise

qualified to perform the essential functions of the job, with or

without reasonable accommodations by the employer; and (3) has

suffered an adverse employment decision. Shaner v. Synthes, 204

F.3d 494, 500 (3d Cir. 2000). In addition to these substantive

elements, McGovern must also establish that he was an employee of

the federal government and that he has exhausted his

administrative remedies. See Bracciale v. City of Phila., 1997

WL 672263, *5 (E.D. Pa. Oct. 29, 1997); Spence v. Straw, 54 F.3d

196, 200 (3d Cir. 1995). If a plaintiff succeeds in establishing

a prima facie case, the burden shifts to the defendant "to

articulate some legitimate, nondiscriminatory reason for the

employee's rejection." Shaner, 204 F.3d at 500 (citation

omitted). "Finally, should defendant carry this burden, the

plaintiff then must have the opportunity to prove ... that the

legitimate reasons offered by the defendants were not its true

reasons, but were a pretext for discrimination." Id. 

Before considering the merits of USMS's summary

judgment motion as to McGovern's RA claim, we note that he

brought an identical claim under the RA in his initial complaint. 

It was dismissed by this court on November 9, 2004. McGovern v.

MVM, Inc., 2004 WL 2554565. In our earlier opinion, we

considered the terms of the applicable labor contract and applied

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the thirteen factor test outlined in Community for Creative

Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989), in deciding

that McGovern was an independent contractor of the USMS, not an

employee. McGovern at *2. Because McGovern was not a federal

employee, we held that he was not eligible to bring a claim

against the USMS under the RA. Id. 

 McGovern argues that the decision of the Court of

Appeals in Wilson constitutes new law that must now be applied by

this court. According to McGovern, the court determined in

Wilson that CSO's are federal employees. Wilson, 475 F.3d 166. 

This is not an accurate reading of that decision. In Wilson, the

Court of Appeals stated: "we need not reach the issue of which

test to employ to determine whether the CSO's were federal

employees or whether the District Court's determination was

appropriate under the Reid test." Id. at 173. It determined the

plaintiff's claims failed on other grounds. Wilson v. MVM, Inc.,

2004 WL 765103, *8 (E.D. Pa. Apr. 1, 2004); Wilson v. MVM, Inc.,

2004 WL 1119926, *2 (E.D. Pa. May 18, 2004).

In any event, even if McGovern were a federal employee,

the grant of summary judgment against him is still proper. The

USMS first argues that McGovern is not disabled within the

meaning of the ADA, the same standard that is applicable under

the RA. The ADA defines "disability" as: (1) a physical or

mental impairment that substantially limits one or more of the

major life activities; (2) a record of such impairment; (3) being

regarded as having such an impairment. 42 U.S.C. § 12102(2). 

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1. In the Sutton case, the plaintiffs were suing a potential

employer who had rejected their employment applications. As just

discussed, this court has held that the USMS was not plaintiff's

employer. Nonetheless, cases against employers or prospective

employers are relevant in considering Plaintiffs' RA claim.

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McGovern contends that he was regarded as disabled by the USMS. 

In making this argument, McGovern must do more than demonstrate

that the USMS was aware that he had an impairment. Sutton v.

United Air Lines, 527 U.S. 471, 491-92 (1999). Instead, to 1

defeat a motion for summary judgment he must come forward with

evidence that the defendant either: (1) "mistakenly believes

that [he] has a physical impairment that substantially limits one

or more major life activities," or (2) "mistakenly believes that

an actual, non-limiting impairment substantially limits one or

more major life activities." Id. at 489. The mere fact that an

employer has medical requirements in place does not mean that the

employer regards any employee who does not meet those

requirements as substantially limited in one or more major life

activities. Id. at 490. 

McGovern argues that there are disputed questions of

material fact as to whether his disqualification from the USMS

contract was based on an erroneous perception that his

disabilities would substantially limit him in the major life

activities of walking, breathing and working. In particular, he

cites to the "Medical Review Form" completed by Dr. Barson, the

USMS physician responsible for reviewing McGovern's case. That

report catalogues the tests and information considered by Dr.

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Barson and states that McGovern suffered from "significant lung

disease, decreased arterial blood oxygen, increased arterial

blood carbon dioxide, increased arterial blood carboxyhemoglobin,

and a decreased arterial blood oxygen saturation." As a result

of these impairments, the doctor declared that McGovern would be

unable to perform some of the essential CSO job functions,

namely: "a. Subduing a physically attacking person; b.

Physically controlling violent or unruly crowds; c. Responding to

an emergency with unplanned strenuous physical activity; and d.

Climb stairs (at least two flights) in pursuit or in an

emergency." The report concludes with the following language:

This condition places you and others at risk

of harm to health and safety due to

possibility of sudden incapacitation on the

job. The exercise requirements of the job

are variable and unpredictable. A weaponsbearing position is an arduous and hazardous

job involving life and death situations that

may occur at any moment. Therefore, your

condition places you and others at

significant risk due to your inability to

maintain a constant state of readiness, and

we recommend medical disqualification.

McGovern contends that this language establishes that

the USMS regarded him as significantly limited in the major life

activity of working. To show that he was regarded as

significantly limited in this way, McGovern must come forward

with evidence that he was regarded as unable to work in a broad

class of jobs, as opposed to a singular, particular job. Sutton,

527 U.S. at 491; 29 C.F.R. § 1630.2(j)(3)(i). The USMS claims

that the reviewing doctor limited his analysis to whether

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McGovern could perform the essential jobs functions of a CSO. 

When inferences from the report are taken in the light most

favorable to McGovern, however, we find that the report creates a

disputed issue of material fact as to whether the USMS perceived

McGovern as unfit to hold law enforcement positions more

generally. The report makes a broad reference to "weaponsbearing positions" and McGovern's general inability to "maintain

a constant state of readiness." Law enforcement jobs constitute

a class of jobs under the ADA. Williams v. Phila. Hous. Auth.

Police Dep't, 380 F.3d 751, 763 (3d Cir. 2004). Further, an

employer's perception that an employee was unable to carry a

firearm constitutes a significant restriction on that employee's

ability to perform law enforcement jobs. Id. at 766-67. 

The USMS next asserts that it is entitled to summary

judgment because McGovern has no evidence as part of a prima

facie case that he is "otherwise qualified to perform the

essential functions of the job, with or without reasonable

accommodations by the employer." Shaner, 204 F.3d at 500

(citation omitted). A qualified individual with a disability is

"an individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires." 42

U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(m). 

Under the ADA, "[C]onsideration shall be given to the

employer's judgment as to what functions of a job are

essential... ." 42 U.S.C. § 12111(8). The record shows that in

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January 2001, after reviewing an analysis of the CSO job function

by the United States Health Service, the Judicial Conference

implemented a list of essential job functions for the CSO

position and adopted a new set of medical standards for CSO's. 

The USMS adopted new protocols for the hiring of CSO's pursuant

to a Judicial Conference directive. Though McGovern asserts that

some of the job functions included by the USMS are overly

demanding for the "low risk profile" of the CSO job, he does not

cite to any evidence suggesting that the essential functions of

the CSO job are anything other than as the USMS has described

them. Thus, for purposes of the instant motion, we consider the

list of essential job functions by the Judicial Conference to be

operative in determining whether McGovern was "otherwise

qualified" as a CSO. 

The USMS points to the report of its reviewing

physician, Dr. Barson, which concluded that McGovern's health

problems rendered him unable to perform the following essential

job functions of a CSO: (1) subduing a physically attacking

person; (2) physically controlling violent or unruly crowds; (3)

responding to an emergency with unplanned strenuous physical

activity; and (4) climbing at least two flights of stairs in

pursuit or in an emergency. McGovern counters by asserting that

the USMS disregarded the report submitted to them by his

physician, Dr. King, that Dr. King's report did not restrict or

prohibit McGovern from working as a CSO, and that he had worked

as a CSO for eight years without incident.

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McGovern points to nothing in the record demonstrating

a disputed issue of material fact as to his ability to perform

the essential functions of the CSO position. As noted earlier,

Dr. Barson's report refers to and draws from Dr. King's report. 

Dr. Barson clearly considered Dr. King's report before making his

final medical determination. McGovern is also incorrect to

characterize Dr. King's report as opining that McGovern should

not be restricted or prohibited him from working as a CSO. 

Nothing that Dr. King said indicates that he expressed an opinion

one way or the other as to McGovern's ability to perform the

essential functions of the CSO position, and he was not asked to

provide such an opinion. Finally, the fact that plaintiff had

worked at the CSO job for eight years without incident is of no

moment to the present inquiry. Such "vague assertions of past

satisfactory job performance and the ability to perform the

essential job functions" do not suffice to raise a disputed issue

of material fact as to whether McGovern was otherwise qualified

for the CSO position. Fromm v. MVM, Inc., 2006 WL 133540, *6

(M.D. Pa. 2006). The relevant inquiry is "whether officers are

capable of performing certain fundamental job functions, not

whether they have in fact been required to do so." Allen v.

Hamm, 2006 WL 436054, *8 (D. Md. Feb. 22, 2006), aff'd 226 Fed.

Appx. 464 (4th Cir. 2007), cert. den. sub nom Blades v. Hamm,

2007 WL 2292974 (U.S. Oct. 9, 2007) (emphasis in original); see

also Basith v. Cook County, 241 F.3d 919, 929 (7th Cir. 2001). 

McGovern has pointed to no other evidence, medical or otherwise,

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that would suggest that he was capable of performing the

essential functions of the CSO position, as outlined by the USMS. 

Furthermore, he has not pointed to any reasonable accommodation

that would have allowed him to perform those essential functions. 

Finally, McGovern has not responded to the evidence of

the USMS that the application of the CSO medical standards in his

case was a legitimate and non-discriminatory reason to find him

medically disqualified. McGovern has cited to nothing to

indicate that this reason was pretextual.

Accordingly, we will grant the motion of the USMS for

summary judgment as to McGovern's claims under the Rehabilitation

Act. 

III. 

We now turn to McGovern's claims against defendant MVM

under the ADA and the due process clause of the Fifth Amendment

of the Constitution. 

First, McGovern alleges that MVM violated the ADA when

it terminated him as an MVM employee. The ADA prohibits

employment discrimination on the basis of disability. 42 U.S.C.

§ 12112(a). Among other forms of unlawful discrimination, the

ADA prohibits employers from "participating in a contractual or

other arrangement or relationship that has the effect of

subjecting a covered entity's qualified applicant or employee

with a disability to [disability] discrimination." 42 U.S.C.

§ 12112(b)(2). In other words, an employer may not achieve

"through a contractual ... relationship what it is prohibited

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from doing directly." 29 C.F.R. § 1630.6. McGovern argues that

MVM violated the ADA by virtue of the terms of its contract with

the USMS. That contract specified that the USMS reviewing

physician makes the ultimate determination about a CSO's medical

fitness and that MVM plays no role whatsoever with respect to any

decision concerning the medical qualifications to become or

continue to be a CSO. If a CSO does not meet the medical

qualifications established by the USMS, he is not permitted to

work as a CSO under the contract. Nothing in the contract

permits MVM to challenge or override the decision of the USMS as

to whether the CSO is medically qualified. McGovern contends

that by permitting the USMS to make that decision unilaterally,

MVM entered into a contract which has the effect of subjecting

one of its employees to unlawful disability discrimination. 

McGovern's theory seeks to hold MVM vicariously

responsible for the unlawful conduct of the USMS under the ADA. 

As we determined earlier, the actions of the USMS did not violate

the RA, which contains the same substantive liability standards

as the ADA. 29 U.S.C. § 794(d); Antol v. Perry, 82 F.3d 1291,

1299 (3d Cir. 1996). Thus, MVM cannot be derivatively liable for

any such violation under § 12112(b)(2). See Fromm v. MVM, Inc.,

2006 WL 133540, *6 (M.D. Pa. 2006). 

McGovern also argues that MVM's conduct directly

violated the ADA. As discussed above, to make out a prima facie

case of discrimination under the ADA, McGovern must produce

evidence that he: (1) is disabled within the meaning of the ADA;

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2. McGovern concedes in his memorandum in opposition to MVM's

motion for summary judgment: 

For purposes of [MVM's motion for summary

judgment] Plaintiff, [sic] accepts certain

facts stated by MVM ... to wit[:] 'MVM

terminated Plaintiff's employment as a CSO

because the USMS determined that he was

medically disqualified to continue working as

a CSO; MVM did not believe that Plaintiff was

not qualified to continue working as a CSO;

Plaintiff's COPD is controlled by the

medication he takes for that condition. MVM

would have continued to employ Plaintiff as a

CSO but for the USMS' determination that he

was medically disqualified; MVM would have

(continued...)

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(2) is otherwise qualified to perform the essential functions of

the job, with or without reasonable accommodations by the

employer; and (3) has suffered an adverse employment decision. 

Shaner, 204 F.3d at 500. The ADA defines "disability" as: (1) a

physical or mental impairment that substantially limits one or

more of the major life activities; (2) a record of such

impairment; (3) being regarded as having such an impairment. 42

U.S.C. § 12102(2). Here, McGovern maintains that he is disabled

under the ADA because MVM regarded him as disabled. This

argument lacks merit.

The uncontested evidence in this case is that MVM did

not regard McGovern as substantially limited in any of the major

life activities of breathing, walking, lifting or working. The

record is undisputed that McGovern was terminated by MVM only

because he did not meet the medical standards established for the

CSO position by the USMS. Accordingly, McGovern cannot make 2

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2.(...continued)

re-hired Plaintiff as a CSO if the USMS

determined that he was medically qualified.'

Pl.'s Mem. in Opp. to MVM's Mot. at 4, n.1. 

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out a prima facie case of disability discrimination under the ADA

on the ground that MVM regarded him as disabled. The motion of

MVM for summary judgment on McGovern's ADA claim will be granted.

Finally, McGovern brings a claim against MVM for

violations of procedural due process. MVM does not dispute that

McGovern had a protected property interest in his continued

employment which is protected by the due process clause of the

Fifth Amendment. Instead, MVM maintains that its motion for

summary judgment should be granted as to this claim because it is

not a state actor and thus is not subject to the requirements of

the due process clause. MVM also contends that McGovern did not

exhaust the steps in the administrative process through which he

was entitled to grieve his termination from MVM. Even were we to

determine that MVM is a state actor, McGovern's claim under the

due process clause must fail because he did not exhaust the

grievance procedures provided to him by the Collective Bargaining

Agreement ("CBA") between his union and MVM. See Wilson, 475

F.3d at 176.

"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.'" Id., quoting Alvin v.

Case 2:04-cv-02541-HB Document 52 Filed 02/19/08 Page 17 of 22
3. McGovern contends that the CBA also included a:

Part two of Step 1 which states 'the contract

manager and a representative of the Union

shall meet within seven (7) working days of

service of said grievance for the purpose of

discussing and, if possible, settling said

grievance. The Employer shall give to the

Union its answer to the grievance and its

reasons therefor with three (3) working days

of the conclusion of such meeting.' 

Pl.'s Mem. in Opp. to MVM's Mot. at 24. McGovern did not provide

to the court the document from which he purports to quote, and we

have found no such provision in the CBA as provided to us by MVM. 

(continued...)

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Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). When McGovern was

terminated from MVM, the terms of his employment were governed by

a CBA between his union and MVM that was in place from October 1,

2002 through September 30, 2005. The CBA lays out a multi-step

grievance process that governs "any dispute concerning wages,

hours, or working conditions of employees covered by this

agreement," including an employee's termination. After an

informal step, which is not at issue here, the employee may

proceed to Step One. Step One provides that the employee shall

set forth the facts of the grievance in writing and submit it to

the Contract Manager at MVM. The Contract Manager must respond

in writing within ten days. If the matter is not resolved to the

employee's satisfaction in Step One, the employee may proceed to

Step Two by appealing the grievance in writing to the Director of

Human Resources within ten days of the denial by the Contract

Manager. The Director of Human Resources must then respond

within ten days with a decision in writing. 

3

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3.(...continued)

Because McGovern does not cite to record evidence on this matter,

he has not raised a disputed issue of material fact and the CBA

as provided by MVM constitutes the undisputed evidence of the

steps in the grievance process.

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In the instant matter, McGovern submitted a grievance

at Step One. It was denied by MVM. However, McGovern did not

appeal the denial of his grievance to the Director of Human

Resources under Step Two. "Because there is process on the books

that 'appears to provide due process' and [McGovern] failed to

take advantage of that process, [he] cannot now 'use the federal

courts as a means to get back what [he] want[s].'" Wilson, 475

F.3d at 176, quoting Alvin, 227 F.3d at 116. 

Recognizing that he did not complete the administrative

process, McGovern contends that he should be excused from doing

so because it would have been futile. "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." Wilson, 475 F.3d at 176, citing Alvin, 227 F.3d

at 118. 

First, McGovern contends that "Plaintiff was given no

process at all despite his efforts." Pl.'s Mem. in Opp. to MVM's

Mot. at 24. The undisputed evidence cited above shows otherwise. 

McGovern's grievance was denied at Step One, and it was McGovern,

not MVM, who bore the responsibility of taking the grievance to

Step Two.

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Next, according to McGovern, a letter sent to him by

Steven Gottrich, MVM Senior Operations Coordinator, MVM Criminal

Justice Services on February 24, 2003 demonstrates that the CBA

process was futile. This letter was apparently a response to a

letter from McGovern to Gottrich dated February 18, 2003, which

purported to appeal the decision of the USMS that McGovern was

not medically qualified to perform the essential functions of the

CSO job. The portion of Gottrich's letter on which McGovern

relies states that "[t]here is nothing that I, nor MVM can do to

address your appeal for reinstatement." With this argument,

McGovern confuses the two distinct issues of his ability to

appeal the medical determination of the USMS and his ability to

appeal his subsequent termination by MVM. McGovern could not use

the process described in the CBA with MVM to appeal a

determination of the USMS. Instead, McGovern was entitled to use

the CBA process to grieve his discharge from MVM. Since

Gottrich's letter concerns only McGovern's desire to appeal his

medical disqualification, not his termination from MVM, it is

irrelevant to the question of whether the procedures under the

CBA were futile and will not be considered as evidence on that

question.

Finally, McGovern maintains that the testimony of John

Gillin, an MVM Site Supervisor and MVM's Rule 30(b)(6) deponent

in the Wilson case, establishes that the administrative

procedures under the CBA were futile. McGovern argues this

testimony establishes that "MVM did not process the Plaintiff's

Case 2:04-cv-02541-HB Document 52 Filed 02/19/08 Page 20 of 22
-21-

grievance under the CBA, but rather forwarded the grievance

appeals and supporting documentation directly to the USMS for

reconsideration." Pl.'s Mem. in Opp. to MVM's Mot. at 25. The

testimony cited by McGovern is of no moment to the question of

futility here. The testimony was given with respect to the

medical disqualifications of the Wilson plaintiffs and makes no

reference to McGovern's situation. Furthermore, it references an

attempt to appeal the medical disqualification determination made

by the USMS, rather than an appeal of the plaintiffs' termination

by MVM.

Accordingly, we will grant the motion of MVM for

summary judgment as to McGovern's claim under the due process

clause of the Fifth Amendment. 

IV.

In sum, the motions for summary judgment of the USMS

and MVM will be granted.

Case 2:04-cv-02541-HB Document 52 Filed 02/19/08 Page 21 of 22
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN MCGOVERN : CIVIL ACTION

:

v. :

:

MVM, INC., et al. : NO. 04-2541

ORDER

AND NOW, this 19th day of February, 2008, for the

reasons set forth in the accompanying Memorandum, it is hereby

ORDERED that:

(1) the motion of the United States Marshals Service

for summary judgment (Doc. No. 42) is GRANTED;

(2) judgment is entered in favor of the United States

Marshals Service and against plaintiff John McGovern; 

(3) the motion of defendant MVM, Inc. for summary

judgment (Doc. No. 41) is GRANTED; and

(4) judgment is entered in favor of defendant MVM,

Inc. and against plaintiff John McGovern.

BY THE COURT:

/s/ Harvey Bartle III 

C.J.

Case 2:04-cv-02541-HB Document 52 Filed 02/19/08 Page 22 of 22