Hunter et al v. Santa Fe Protective Services, Inc.
OPINION. Signed by Honorable Judge Myron H. Thompson on 10/25/11. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JEWEL HUNTER, et al.,
SANTA FE PROTECTIVE
CIVIL ACTION NO.
positions with defendant Santa Fe Protective Services,
Inc., bring this lawsuit on behalf of themselves and all
violation of the Age Discrimination in Employment Act of
1967 (ADEA), 29 U.S.C. §§ 621-634.1 The plaintiffs assert
1. The plaintiffs are Jewel Hunter, Carol Adams,
Judith Dashner, Karen Didorek, Marilyn Revalee, Eddie
Bradshaw, Linda Forbes, Huie Infinger, William Tharpe,
John Thompson, William Dover, Cynthia O’Bryant, Melanie
Griffith, John H. Crawford, Jr., Gregory Davis, and Amy
J. Hanbury. Plaintiff Infinger died after this lawsuit
was filed; his claims are therefore being pursued by
both ‘disparate treatment’ and ‘disparate impact’ claims.
Jurisdiction is proper under 29 U.S.C. § 626(c).
This lawsuit is now before the court on Santa Fe’s
motion for summary judgment on both of the plaintiffs’
claims and on the plaintiffs’ motion for partial summary
judgment is warranted if, after viewing the evidence in
the light most favorable to the non-moving party and
drawing all reasonable inferences in their favor, the
court is convinced “that there is no genuine dispute as
to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a);
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
For the reasons that follow,
Santa Fe’s motion will be granted and the plaintiffs’
motion will be denied.
Estelle Imfinger, as administratrix of his estate.
On April 17, 2009, the Army awarded Santa Fe a
contract to provide security services at Fort Rucker,
That contract had previously been held by
Clifton Dates & Associates, Inc. (CDA).
Santa Fe decided
to hire as many of the existing CDA guards as possible to
fill the 135 full- and part-time security-guard positions
at Fort Rucker.
Accordingly, Santa Fe held meetings with
the CDA guards to tell them about the contract and its
requirements, and it sent follow-up letters to the guards
By June 1, 2009, an applicant was required to
meet four conditions: pass a background check, pass a
qualify to use pepper spray and carry
a collapsible baton.
This litigation focuses on the 2006 PAT that was part
of AR 190-56, an Army regulation covering the Civilian
significantly revised to include the PAT in 2006.
contractors to send out conditional employment notices
that include a description of the current PAT, see AR
190-56, at App’x B (Doc. No. 49-3, at 27-30); all of the
Like the adoption of other administrative rules, the 2006
PAT was the result of a multi-year process.
began in the mid-1990s but were abandoned.
on standardizing physical-agility tests began following
decision to deploy more Army personnel, including those
serving as military police at Army bases, overseas as a
part of his war-waging efforts; when active-duty troops
reservists,” but when reservists were also deployed, the
Army decided to hire private, contract security guards to
staff its installations.
Loe Dep. (Doc. No. 49-1, at 20-
The Army’s Office of the Provost Marshal General
developed the 2006 PAT, and Physical Security Specialist
Michael Loe took the lead in drafting the regulation.
do so, Loe met with senior Army officials (for example,
the Army’s Surgeon General and physical-fitness experts
from the Army Military Policy School); conducted a threeday “working group” in 2004 involving 30 representatives
from various Army commands; and consulted aerobic-fitness
standards for law-enforcement personnel that had been
validated by an outside group.
In April 2005, Loe
completed a full draft of the 2006 PAT and submitted it
to the working group.
After incorporating the group’s
comments, Loe sent the draft to legal officers and up the
The 2006 PAT was published September
Though there were changes to the entire AR 190-56
employment statements), only the 2006 PAT requirements
are relevant here: the PAT required security guards to
complete 29 sit-ups in two minutes, a 300-meter sprint in
81 seconds, 21 push-ups in two minutes, and a one-and-ahalf mile run in under 17 minutes and 30 seconds.
2006 PAT differed from the physical-fitness requirements
CDA guards had been required to pass under their contract
with the Army.
CDA guards had had to pass a fitness test
consisting of 21 sit-ups in two minutes, 21 push-ups in
two minutes, and a one-mile run in less than 12 minutes.
Women were permitted to perform the push-ups on their
plaintiffs had passed it in 2008.
After the amendments to AR 190-56 went into effect,
representatives that the 2006 PAT requirements were too
In response, the Army decided to consider
revising AR 190-56 again.
On March 20, 2008, before
Santa Fe assumed the contract at Fort Rucker, the Provost
upcoming revisions to AR 190-56.
In the memorandum, the
Provost Marshal General “request[ed] commands not take
adverse personnel actions on employees who do not pass
the record PAT in the current AR,” Provost Marshal Memo.
(Doc. No. 57-3) at 1; the 2008 memorandum also requested
contractors of the Army position on this issue.”
memorandum; instead, the contract contained a Performance
Work Statement (PWS) that said all Santa Fe security
guards “shall meet the medical and physical requirements
outlined in AR 190-56.”
PWS § 126.96.36.199 (Doc. No. 52-5),
The PWS also stated that “Personnel that fail the
requirements shall not be used on this contract until the
employee meets the requirements.”
Id. § 188.8.131.52.
These provisions were in the contract because the
Army’s contracting officer for Fort Rucker, Lee Rentfrow,
required them as he negotiated the contract with Santa
Fe’s Vice President of Business Operations, Mark Liming.
Rentfrow was bound to include these requirements in the
contract in order to comply with AR 190-56, and the
negotiations between Rentfrow and Liming reflect the
general policy of the Army with respect to using private
designate a contracting officer, guided by the Army’s
regulations, to negotiate a particular contract for the
needs of a certain base.
The contracting officer, while
bound to Army regulations, also has significant authority
and discretion when negotiating a contract, and typically
oversees the implementation of contracts by monitoring
and assisting in various administrative tasks, such as
supervising worker hiring.
Working with Rentfrow, Liming created a transition
team to oversee the security-guard-hiring process, which
the two devised in April 2009 and was described in the
Liming first hired Joseph
Gentz, a non-CDA employee, as the Program Manager or
‘Chief of Guards,’ which is the highest-ranking civilian
post at the base.
Liming then hired Frank Gorski,
Manager or ‘Deputy Chief.’
From there, Liming and his
team implemented the process described in the conditional
All prospective employees had to get a physical and
then be medically cleared to ensure that they were able
to take the 2006 PAT.
applicants obtained medical
clearance, they were scheduled to take the PAT.
passing the 2006 PAT, applicants moved through the next
additional training and certification, an interview, and
the completion of other paperwork.
Applicants who failed
any part of the PAT, however, could not attempt the other
portions of the test and did not go on to the next stage
in the hiring process.
Though applicants were given
multiple opportunities to take the PAT (which had to be
implementation date of June 1, 2009, was effectively the
final date for CDA guards.
These guards could retake the
2006 PAT after June 1st at one of three scheduled times
in June, but, per an agreement between Santa Fe and the
security guards’ union, they would not be guaranteed an
immediate job at the Fort; they would be “assimilated
Memorandum of Agreement, at 3 (Doc. No. 74-1).
Griffith, were not medically cleared to take the PAT and
thus did not take it.
The remaining plaintiffs all
attempted the PAT but were unable to pass it.
Six of the
plaintiffs (John Crawford, Linda Forbes, Amy Hambury,
attempted the PAT multiple times but failed each time.
All of the plaintiffs were incumbent security guards at
Fort Rucker when Santa Fe took over the contract, and all
of them were over 40-years old at the time.
All of the
security guards Santa Fe hired passed the 2006 PAT.
The ADEA makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual or
privileges of employment, because of such individual’s
29 U.S.C. § 623(a)(1).
A plaintiff can make out
a claim for age discrimination under disparate-treatment
treatment case, “[t]he employer simply treats some people
less favorably than others because of their [age].
of discriminatory motive is critical, although it can in
differences in treatment.”
Hazen Paper Co. v. Biggins,
507 U.S. 604, 609 (1993) (internal quotes and citation
Impact claims, however, “involve employment
practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on
one group than another”; proof of discriminatory motive
The plaintiffs here allege that
While it may in some instances be possible to show
victims of illegal discrimination.
evidence is used, the court looks to the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S.
See, e.g., Chapman v. AI Transport, 229 F.3d
1012, 1024 (11th Cir. 2000).
Under McDonnell Douglas,
the plaintiffs must first make out a prima-facie case of
Once the plaintiffs have done so, a
presumption of age discrimination arises, and the burden
nondiscriminatory reason for the challenged employment
This is a burden of production only; the
employer need not persuade the finder of fact that the
Id. (citing Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981)).
Once the employer
satisfies its burden of production, the presumption of
discrimination is eliminated and the burden shifts back
to the plaintiffs to produce evidence “sufficient to
reasons given by the employer were not the real reasons
for the adverse employment decision.”
ultimate burden of proof rests at all times with the
plaintiffs, the employer is entitled to summary judgment
if the plaintiffs fail to provide sufficient evidence to
create a genuine issue of material fact as to whether
each of the employer’s proffered reasons is pretextual.
Id. at 1025.
A plaintiff can make out a prima-facie case of age
discrimination by showing that she “(1) was a member of
the protected age group, (2) was subjected to adverse
employment action, (3) was qualified to do the job, and
(4) was replaced by or otherwise lost a position to a
Id. at 1024.
Here, the parties
dispute only whether the plaintiffs were qualified for
the position of security guard.
According to Santa Fe,
“Because passing the PAT was a condition of employment
with Santa Fe and Plaintiffs failed the PAT, they were
not qualified to work as Santa Fe security guards at Fort
plaintiffs counter that “they were actually qualified to
perform the duties of a security guard at Fort Rucker,”
Pls’ Resp. at 36 (Doc. No. 56) (emphasis original),
because they had all been performing the required job
duties and tasks for several years.
The court agrees
that the plaintiffs’ long tenure as security guards is a
See Damon v. Fleming Supermarkets of Florida,
precedent holds that if a plaintiff has enjoyed a long
tenure at a certain position, we can infer that he or she
is qualified to hold that particular position.”).
In response to the plaintiffs’ prima-facie case,
Santa Fe gives a non-discriminatory reason for not hiring
them: the plaintiffs did not pass the 2006 PAT.
says that its contract with the Army required that all
applicants for security-guard positions take and pass the
2006 PAT and that the plaintiffs here either did not take
it because they were not medically cleared to do so or
they took it but failed.
This reason satisfies Santa
Fe’s burden of production.
As a consequence, the burden now shifts back to the
persuading the court that a discriminatory reason “more
employment decision is not worthy of belief.”
City of Montgomery, 756 F. Supp. 2d 1339, 1345 (M.D. Ala.
2010) (Thompson, J.) (citing Burdine, 450 U.S. at 256)
The plaintiffs here have proceeded
under the second method for demonstrating pretext--that
is, by demonstrating the employment decision is “not
worthy of belief”--which may be accomplished by pointing
proffered explanation. Id. (quotes and internal citation
That being the case, however, the plaintiffs
nondiscrimiatory reasons or substitute [their] business
judgment for that of the employer.
Provided that the
proffered reason is one that might motivate a reasonable
employer, [the plaintiffs] must meet the reason head on
and rebut it, and the [plaintiffs] cannot succeed by
Champan, 229 F.3d at 1030.
purported weaknesses in Santa Fe’s given reason for its
actions: (1) the March 2008 Army memorandum revised the
contract and indicated that the 2006 PAT should not be
used to make employment decisions; (2) Chief of Guards
Joe Gentz and Deputy Chief of Guards Frank Gorski did not
have to take the 2006 PAT; and (3) Gentz made a comment
indicating discriminatory animus against older workers.
The parties spend much of their briefing disputing
whether the March 2008 memorandum had any effect on Santa
Fe’s contract with the Army.
The plaintiffs refer to the
supplemented AR 190-56 and therefore altered the terms of
Santa Fe’s contract with the Army; Santa Fe responds that
the memorandum was not part of the contract, that no one
from the Army ever sent the memorandum to Santa Fe, and
that only contracting officers (not the Provost Marshal
General) have the authority to set or change contract
The court rejects the plaintiffs’ approach to this
At bottom, the plaintiffs appear to view the
dispute as contractual: if the Army’s contract with Santa
Fe did not incorporate the 2006 PAT, the plaintiffs win;
if the contract did, Santa Fe wins.
But the disparate-
treatment claim is not a simple contract dispute; the
claim turns instead on motive.
The appropriate question
is not whether the March 2008 memorandum actually changed
Santa Fe’s contract with the Army or even whether it
interpretation of the contract was reasonable or was so
The Eleventh Circuit Court of Appeals has
emphasized that: Courts “do not sit as a super-personnel
No matter how medieval a firm's practices, no
matter how high-handed its decisional process, no matter
how mistaken the firm's managers, the ADEA does not
Rather [the] inquiry is limited to whether
the employer gave an honest explanation of its behavior.”
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th
Cir. 1991) (internal quotes and citation omitted); see
also Cofield v. Goldkist, Inc., 267 F.3d 1264, 1269 (11th
Cir. 2011) (per curiam).
The plaintiffs may show that
language in the documents at issue and from the parties’
First, the record is totally devoid of evidence that
For example, there is no evidence that,
circumstances involving PAT requirements, Santa Fe has
interpreted that contract in a manner inconsistent with
the way it has interpreted the contact at issue here.
Second, the plaintiffs have not demonstrated that
Santa Fe’s interpretation of its contractual obligations
with the Army was unreasonable.
It is undisputed that
the contract between the Army and Santa Fe required
Rentfrow told Santa Fe it should make passage of the PAT
process; and that the conditional employment letters,
signed by all of the plaintiffs, were explicit about
Indeed, adopting the contracting officer’s terms, for all
intents and purposes, was a prerequisite of the contract:
if Santa Fe refused to follow the Army’s regulations it
would not likely have been given the contract in the
Third, Santa Fe’s view of the Provost Marshal’s
memorandum as non-binding is reasonable.
the memorandum was not formally included or appended to
Santa Fe’s contract.
Next, as explained below, the
language of the memorandum itself, the testimony of its
drafter, and additional documents in the record submitted
memorandum did not modify the contract between Santa Fe
and the Army.
regarding applicants who did not pass the PAT.
Memorandum (Doc. No. 57-3) at 1.
This guidance was
needed, the memorandum continues, because the regulation
was in the process of “major revision and [was to] be
fielded for review and comment in the coming weeks.”
The result of this process, the memorandum advised, would
exception for “temporary medical restrictions for those
who are unable to take the PAT or certain PAT events.”
The advisory effect of the memorandum is clear in the
paragraph uses the word “request” four times and ends
with a “recommendation.”
Specifically, the memorandum
actions on employees who do not pass the record PAT in
the current AR” and further “request[ed] this restriction
Id. (emphasis added).
The memorandum also
“request[ed] ... Contracting Officers ... [to] notify
contractors of the Army position” and to avoid any future
inconsistencies between the PWS (which is part of a
contractor’s contract and incorporates AR 190-56) and
elimination of the specific PAT standards in PWS and
instead recommend[ed] language requiring compliance with
the PAT standards contained in the most current version
of AR 190-56.”
If the memorandum
language would be unnecessary; the contract would have
just been changed.
Next, Joseph Kamide, the Army official who drafted
the memorandum, confirmed that it “was a request to
commanders, it wasn’t a directive.”
(Doc. No. 52-4).
Kamide Dep. 47:5-11
Kamide also clarified the role of the
Provost Marshal General’s relationship to Army policy and
The Provost Marshal General, as an
policy; is not involved in actual contracting; and does
not dictate to contracting officers what to put in or
keep out of a specific contract.
Id. at 67-68.
contrast, contracting officers like Rentfrow (not the
monitor compliance with Army directives.
officers, therefore, have discretion when implementing
contracts and need not follow every policy preference of
the Provost Marshal, unless that policy preference has,
for some reason, been turned into the force of a rule by
being actually incorporated into the Army regulations or
other formal documents, like the PWS.
that, given the role of the Provost Marshal’s office and
given the reason for sending interim “guidance” to those
who made contracts that would ultimately be subject to
memorandum was “not an order” but rather was ”a request.”
Next, the plaintiffs have failed to point to any
evidence in the record that could reasonably support the
inference that the March 2008 memorandum modified Santa
descriptions of the Office of the Provost Marshal, as
outlined in the PWS and in AR 190-56; several times in
their briefs and again at oral argument, the plaintiffs
point to documents describing the office of the Provost
responsibilities of the Provost Marshal as the officer
who “will develop policies, standards, and procedures to
enhance the overall effectiveness of” the Army Civilian
Police and Security Guard Program.
(Doc. No. 49-3, at 8).
AR 190-56 § 1.4a
The problem for the plaintiffs,
however, is that merely describing the Provost Marshal’s
regulation itself, and it does nothing to change the fact
that the Provost Marshal does not have the power to
change or negotiate individual contracts with private
companies like Santa Fe.
When regulations, like AR 190-
56, are actually formally revised (a process that the
incorporated into the PWS of a particular contract; a
non-binding piece of “interim guidance,” however, is not.
Kamide Dep. (Doc. No. 52-4, at 70).
Finally, any remaining doubts about the plaintiffs’
inability to show pretext here are put to rest by the
signed by Santa Fe and the United Government Security
Officers of America Local #401 (Local #401), which is the
union for the security guards.
The “purpose” of the MOA
implementation” of the 2006 PAT requirements. Memorandum
of Agreement, at 2 (Doc. No. 74-1).
signed well-after the March 2008 memorandum was written,
leaves no room for factual dispute about how Santa Fe and
the union contemplated the contract would be implemented.
The MOA first defines Santa Fe as the “‘Successor
security guard services” at Fort Rucker, and defines
Local #401 as “the exclusive bargaining agent for the
unit of non-supervisory guards who were employed by CDA.”
The MOA then identifies the AR 190-56's PAT, that
is, the 2006 PAT, as the governing standard:
“Santa Fe desires to hire many of the
guards within the bargaining unit to
work for it under its new contract with
the U.S. Army. As the Union is aware,
however, employment with Santa Fe is
subject to and contingent upon the
successful completion by an applicant
for employment of the passing of the
Physical Agility Test (‘PAT’) Army
Regulation AR 190-56.
The failure to
successfully complete the ‘PAT’ makes an
individual ineligible for employment.
successfully complete the ‘PAT’ will
subject the applicant to termination.”
The MOA then sets forth a schedule of PAT dates
after the full-implementation date of June 1, 2009, and
provides that, “Bargaining unit members who successfully
complete the ... process will be assimilated back into
Id. at 3.
“the bargaining unit member is unable to
successfully complete the ‘PAT,’ the
bargaining unit member will be deemed to
have failed to meet the essential
requirements of the position and his or
her contingency offer of employment will
successfully complete the ‘PAT’ will be
considered just cause for termination
Id. at 4.
contemplates adverse-employment action as a result of
failing the 2006 PAT.
That the union, which served as
inevitably have adverse-employment consequences supports
strongly Santa Fe’s understanding of its obligations
under its contract with the Army as being reasonable.
For the above reasons, the court is convinced that a
reasonable factfinder would have to conclude that Santa
Moreover, even if the question were, as argued by the
actually correct, the court would have to conclude, for
the above reasons, that a reasonable factfinder would
have to answer yes.
The fact that Gorski and Gentz did not have to take
the 2006 PAT is insufficient to establish pretext.
situated to the plaintiffs because they were supervisors
and because “supervisors and their subordinates are not
proper comparators for purposes of a disparate treatment
Def.’s Mot. at 42 (Doc. No. 48) (citing Mathis
v. Wachovia Bank, 255 F. App’x 425, 431 (11th Cir.
The plaintiffs respond by pointing out that
there is no distinction between supervisors and security
guards in the PWS, at least not in terms of whether one
group is required to pass the PAT and another group is
AR 190-56 at App’x G-2 (Doc. No. 49-
included in the SOW/PWS.”).
In the end, however, four undisputed facts make this
“exception” insufficient to demonstrate pretext here.
First, as described above, Lee Rentfrow was the Army’s
That Rentfrow knew Gentz and Gorski had not
taken the PAT and that he worked with them to implement
the requirement for the security guards demonstrates that
he--along with Liming--did not think the PAT requirement
applied to the Program Manager and his Deputy, Gentz and
Again, the relevant question is not one of
contract interpretation, but rather whether Santa Fe’s
“exception” is evidence that the Army, regardless of the
vague terms of the PWS, understood the agreement in the
same way as did Santa Fe.
Second, as further evidence that even the plaintiffs
understood there to be a distinction between security
guards and supervisors as related to passing the PAT, the
MOA between Local #401 and Santa Fe refers only to “nonsupervisory guards” and contemplates that failing the PAT
would result in termination for these guards only.
Third, as Santa Fe emphasizes, there are tangible
responsibilities, treatment, and even history and those
of the Chief of Guards and his deputy.
example, Gentz and Gorski were not former CDA employees;
more saliently, Gentz and Gorski do not perform even
remotely the same functions as security guards, a fact
which the plaintiffs do not dispute.
make Gentz and Gorski poor comparators for the purpose of
As the Eleventh Circuit has
recognized, the “comparator must be nearly identical to
the plaintiff to prevent courts from second-guessing a
reasonable decision by the employer.”
Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1091 (11th th Cir. 2004).
Fourth and perhaps most compellingly, even if Gorski
and Gentz were adequate comparators, cf. Lathem v. Dep’t
of Children and Youth Servs., 172 F.3d 786, 792-93 (11th
Cir. 1999) (finding a supervisor and lower-level employee
similarly situated because they were subject to the same
attempt to show pretext for age discrimination falters
because Gorski and Gentz were both over the age of 40
when they were hired.
Indeed, that Santa Fe exempted
dramatically demonstrates that the motive behind the PAT
was not age.
The court holds that a reasonable factfinder would
have to reject the plaintiffs’ reliance on the Gorski and
Gentz exception as evidence of age discrimination.
Finally, the plaintiffs have provided evidence of an
age-biased comment made by Gentz, a Santa Fe official.
According to the plaintiffs, Gentz said the following to
plaintiff Crawford while he was preparing to take the
PAT: “Don’t you think you are a little old for this?
Don’t you think you should be doing something else?”
however, does not do the work the plaintiffs need.
The plaintiffs’ claim is that Santa Fe’s decision to
despite the March 2008 memorandum, was discrimination on
account of age.
The problem with relying on Gentz’s
comment, however, is that the decision to require the PAT
as a condition for employment was made by Santa Fe in
Liming hired Gentz.
See, e.g., Liming Dep. (Doc. No. 49-
7, at 102) (“I had a meeting with the contract officer on
contractual requirements were discussed.
And at that
time, he informed me, and reiterated, that the AR 190,
dated September of ‘06, was the standard for the PAT.”).
It is also undisputed that Gentz had no role in adopting
Santa Fe’s position about whether to use the CDA’s old
physical fitness test, the 2006 PAT, or anything other
condition for employment.
Cf. Gentz Aff. ¶ 4 (Doc. No.
52-7). (“Although I helped administer the PAT for Santa
Fe, I had no input into Santa Fe’s hiring decisions.”).
As AR 190-56 bears out, the Army required the 2006 PAT,
which is why it was included in the contract.
problem for the plaintiffs is that Gentz had no role in
the decision to use the 2006 PAT and that, as a result,
his bias (as reflected in his age-biased comment) cannot
be assigned to Santa Fe.
In conclusion, for all of the above reasons, the
court holds that Santa Fe is due summary judgment in its
conclude that the company did not discriminate against
the plaintiffs because of their age.
B. Disparate Impact
The plaintiffs’ second claim is that the use of the
2006 PAT violated the ADEA because the requirement had a
disparate impact on applicant-guards over age 40.
discrimination, a plaintiff must establish that (1) there
is a significant statistical disparity among members of
facially-neutral employment policy or practice; and (3)
there is a causal nexus between the specific policy or
(overruled on other grounds by Ash v. Tyson Foods, Inc.,
546 U.S. 454, 456-57 (2006) (per curiam)).
protected by Title VII [of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 1981a, 2000e through 2000e-17],
not uncommonly has relevance to an individual's capacity
to engage in certain types of employment,”
Smith v. City
of Jackson, Miss., 544 U.S. 228, 240 (2005), disparate34
impact liability under the ADEA has a narrower scope than
that under Title VII.
As a result, the ADEA includes an affirmative defense
“permitting any ‘otherwise prohibited’ action ‘where the
differentiation is based on reasonable factors other than
employer is not liable for age discrimination as long as
it can show that the adverse impact is attributable to a
reasonable factors other than age.
The employer bears
both the burden of production and of persuasion as to the
reasonableness of its choices.
Meacham v. Knolls Atomic
Power Lab., 554 U.S. 84, 93-94 (2008).
precise contours of what amounts to a reasonable factor
other than age were not thoroughly described in City of
Jackson or Meacham, one very important point is clear:
the ‘reasonable factor’ test requires a showing less
stringent than the ‘business necessity’ test that is
applicable to other types of employment-discrimination
“Unlike the business necessity test, which asks
whether there are other ways for the employer to achieve
its goals that do not result in a disparate impact on a
protected class, the reasonableness inquiry includes no
such requirement.” City of Jackson, 544 U.S. at 242-43.
Thus, as Meacham put it, the “focus of the defense is
that the factor relied upon was a ‘reasonable’ one for
the employer to be using,” 554 U.S. at 96; as a result,
“certain employment criteria that are routinely used may
workers as a group.”
City of Jackson, 544 U.S. at 241.
Here, there is no question that the plaintiffs have
made out their prima-facie case; Santa Fe therefore rests
its motion for summary judgment on the contention that
its use of the 2006 PAT was based on a reasonable factor
2. In fact, because of City of Jackson and Meacham,
the EEOC has issued a notice of proposed rulemaking for
the definition of a “reasonable factor other than age.”
Definition of “Reasonable Factors Other Than Age” Under
the Age Discrimination in Employment Act,” 75 Fed. Reg.
7212 (Feb. 18, 2010). Because this rule it is not yet
final, the court has not relied on the EEOC’s proposed
than age: “the Army required Santa Fe to use the test.”
Def. Mot. at 21 (Doc. No. 48).3
As with their disparate-
impact claim, the plaintiffs respond that, because of the
March 2008 memorandum, it was unreasonable for Santa Fe
to use the 2006 PAT.
As previously discussed, the determination of whether
it was reasonable to use the 2006 PAT is a question quite
distinct from whether the March 2008 memorandum actually
altered the terms of Santa Fe’s contract.
For the same
reasons described above, this decision was reasonable
and, at any rate, the March 2008 memorandum did not have
the effect the plaintiffs contend it did.
briefly, a reasonable factfinder would have find it was
reasonable for Santa Fe to make the 2006 PAT a condition
of employment for the following reasons: the requirement
3. Santa Fe also argues that this court should not
inquire into the reasonableness of the Army’s decision to
institute the 2006 PAT because it is a military judgment
that falls under the political-question doctrine. Given
that the court finds Santa Fe’s decision rests on a
reasonable factor other than age, the court does not
address this issue.
was a part of its contract; Santa Fe negotiated this
contract with Army officer Rentfrow (who had knowledge of
the March 2008 memorandum); and the MOA between the Local
#401 and Santa Fe confirmed that the 2006 PAT was a
A reasonable factfinder would therefore have
to conclude further that Santa Fe’s requirement of the
responded to the Army’s contractual requirements.
City of Jackson, 544 U.S. at 242 (despite “disparate
impact, ... the City's decision to grant a larger raise
to lower echelon employees for the purpose of bringing
salaries in line with that of surrounding police forces
was a decision based on a ‘reasonable facto[r] other than
age’ that responded to the City's legitimate goal of
retaining police officers”); Allen v. Highlands Hosp.
Corp., 545 F.3d 387, 406 (6th Cir. 2008) (upholding an
employer’s policy that was “not be the wisest method of
running a hospital,” but was ”a reasonable factor other
than age in response to [the hospital’s] bulging employee
The plaintiffs emphasize that Santa Fe asserts as an
required the company to use the PAT; they argue that the
plaintiffs’ categorical rejection of third-party reliance
categorical acceptance of it: There is nothing in the
ADEA’s language that prohibits or requires acceptance of
reliance on third-parties’ requirements when put forward
as an affirmative defense; rather, because the defense is
the presence of a reasonable factor other than age, the
applicable question is whether the reliance on thirdparty requirements was reasonable under the specific
Here, the question, therefore,
is whether Santa Fe’s reliance on the Army’s adoption of
the 2006 PAT was reasonable.
For the reasons given
above, the court concludes that a reasonable factfinder
would have to find it was.
Moreover, even if the focus were not on whether it
was reasonable for Santa Fe to rely upon the Army’s PAT
themselves reasonable, the conclusion would be the same.
First, a reasonable factfinder would have to conclude
that requiring a physical-agility requirement in general
It is undisputed that the Army developed
international war-waging efforts that escalated after
“September 11, 2001.”
Second, a reasonable factfinder
would have to reach the same conclusion for the 2006 PAT
The PAT was the product of an extensive
Security Specialist Loe met with senior Army officials
(including, the Army’s Surgeon General and physicalfitness experts from the Army Military Policy School);
conducted a three-day “working group” in 2004 involving
30 representatives from various Army commands; consulted
aerobic fitness standards for law-enforcement personnel
completing a full draft of the new AR 190-56, submitted
it to the working group; and then, after incorporating
the group’s comments, sent the draft to legal officers
and up the chain-of-command.
The plaintiffs also argue that Santa Fe’s reliance on
determining whether a selection device is sufficiently
job-related to comply with the requirements of Title
Ensley Branch of NAACP v. Seibels, 616 F.2d 812,
816 n. 11 (5th Cir. 1980).
While validation would be one
indeed, validation may be needed depending on the test
and the particular circumstances of its use), the court
is unaware of any provision in the ADEA categorically
requiring validation before an employer may be found to
have reasonably relied on a test.
Here, although there
was no validation specifically aimed at Santa Fe’s use of
the 2006 PAT in hiring security guards, the court is
convinced that a reasonable factfinder would have to
conclude, under the particular circumstances presented
here (the extensive and comprehensive process that led to
the PAT) and for the reasons given above, that Santa Fe’s
use of the PAT was still reasonable.
The plaintiffs further observe that, in 2009, a newer
version of AR 190-56 was published; that “The
temporary medical waivers”; and that, “Since the new AR
not been terminated for failing the PAT.”
Resp. in Opp. to Def.’s Mot.for Sum. Jud. (Doc. No. 56)
The court’s response to this observation is
simple: “While there may have been other reasonable ways
for the [Army] to achieve its goals, the one selected was
Unlike the business necessity test,
which asks whether there are other ways for the employer
to achieve its goals that do not result in a disparate
impact on a protected class, the reasonableness inquiry
includes no such requirement.”
City of Jackson, 544 U.S.
For the above reasons, the plaintiffs have failed as
treatment and disparate-impact claims. Santa Fe’s motion
for summary judgment will be granted on both of the
partial summary judgment on their disparate-impact claim
will be denied.
An appropriate judgment will be entered.
DONE, this the 25th day of October, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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