Hunter et al v. Santa Fe Protective Services, Inc.

Filing 99

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.,

)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
SANTA FE PROTECTIVE
SERVICES, INC.,
Defendant.

CIVIL ACTION NO.
2:09cv1155-MHT
(WO)

OPINION
The

plaintiffs,

who

applied

for

security-guard

positions with defendant Santa Fe Protective Services,
Inc., bring this lawsuit on behalf of themselves and all
others

similarly

discriminated

situated,

against

them

charging
on

the

that

basis

of

Santa

Fe

age,

in

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
(continued...)

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

on

their

disparate-impact

claim.

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.

1(...continued)
Estelle Imfinger, as administratrix of his estate.
2

II.

BACKGROUND

On April 17, 2009, the Army awarded Santa Fe a
contract to provide security services at Fort Rucker,
Alabama.

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
that

made

company.

conditional

offers

of

employment

with

the

By June 1, 2009, an applicant was required to

meet four conditions: pass a background check, pass a
physical-agility
certification, and

test

(PAT),

obtain

firearm

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
Police

and

Security

Guard

Program.

3

After

years

of

unclear

physical-agility

standards,

AR

190-56

significantly revised to include the PAT in 2006.
2006,

the

Army,

through

AR

190-56,

has

was
Since

required

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
plaintiffs

signed

the

conditional

employment

letter.

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.

Efforts

New emphasis

on standardizing physical-agility tests began following
“September

11,

2001,”

and

the

commander-in-chief’s

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
were

“needed

in

the

war

fight”

the

army

“mobilized

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-

4

21).

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.

To

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
chain-of-command.

The 2006 PAT was published September

27, 2006.
Though there were changes to the entire AR 190-56
regulation

(like

the

requirement

of

conditional

employment statements), only the 2006 PAT requirements
are relevant here: the PAT required security guards to

5

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.

The

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
knees.

The

administered

CDA

physical-fitness

annually

in

October,

test
and

had

all

of

been
the

plaintiffs had passed it in 2008.
After the amendments to AR 190-56 went into effect,
the

Army

received

complaints

from

congressional

representatives that the 2006 PAT requirements were too
stringent.

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
Marshal

General

issued

a

memorandum

6

regarding

the

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
that

“Contracting

Officers’

Representatives

notify

contractors of the Army position on this issue.”
Santa

Fe’s

contract

does

not

include

Id.

the

2008

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.”
at 3.

PWS § 1.4.7.1 (Doc. No. 52-5),

The PWS also stated that “Personnel that fail the

pre-assignment

or

the

annual

PAT

qualification

requirements shall not be used on this contract until the
employee meets the requirements.”

Id. § 1.4.10.1.

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

7

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
contracts

at

military

installations:

the

Army

will

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
conditional-offer letters.

Liming first hired Joseph

Gentz, a non-CDA employee, as the Program Manager or

8

‘Chief of Guards,’ which is the highest-ranking civilian
post at the base.
another

non-CDA

Liming then hired Frank Gorski,

employee,

to

Manager or ‘Deputy Chief.’

be

the

Deputy

Program

From there, Liming and his

team implemented the process described in the conditional
employment letter.
All prospective employees had to get a physical and
then be medically cleared to ensure that they were able
to take the 2006 PAT.

Once

applicants obtained medical

clearance, they were scheduled to take the PAT.

Upon

passing the 2006 PAT, applicants moved through the next
steps

in

hiring:

a

more

comprehensive

medical

exam,

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
within

30

days

of

their

9

medical

clearance),

the

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
back

into

the

workforce”

in

an

“expedient

manner.”

Memorandum of Agreement, at 3 (Doc. No. 74-1).
Two

of

the

plaintiffs,

Carol

Adams

and

Melanie

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,
Jewel

Hunter,

Huie

Infinger,

and

Cynthia

O’Bryant)

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.

10

III.

DISCUSSION

The ADEA makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual or
otherwise
respect

to

discriminate
his

against

compensation,

any

individual

terms,

with

conditions,

or

privileges of employment, because of such individual’s
age.”

29 U.S.C. § 623(a)(1).

A plaintiff can make out

a claim for age discrimination under disparate-treatment
or

disparate-impact

theories

of

liability.

In

a

treatment case, “[t]he employer simply treats some people
less favorably than others because of their [age].

Proof

of discriminatory motive is critical, although it can in
some

situations

be

inferred

differences in treatment.”

from

the

mere

fact

of

Hazen Paper Co. v. Biggins,

507 U.S. 604, 609 (1993) (internal quotes and citation
omitted).

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
11

is unnecessary.
Santa

Fe’s

Id.

failure

discrimination

in

The plaintiffs here allege that
to

hire

both

them

its

was

the

result

disparate-treatment

of
and

disparate-impact forms.

A.

Disparate Treatment
1.

While it may in some instances be possible to show
disparate

treatment

discrimination,
circumstantial

through

plaintiffs
evidence

direct

are

to

most

prove

victims of illegal discrimination.

evidence

often

that

left

they

are

of
with
the

When circumstantial

evidence is used, the court looks to the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).

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
age discrimination.

Once the plaintiffs have done so, a

presumption of age discrimination arises, and the burden
shifts

to

the

employer

to
12

“articulate

a

legitimate,

nondiscriminatory reason for the challenged employment
action.”

Id.

This is a burden of production only; the

employer need not persuade the finder of fact that the
proffered

reason

was

the

actual

motivation

actions.

Id. (citing Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 254-55 (1981)).

for

its

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
permit

a

reasonable

factfinder

to

conclude

that

the

reasons given by the employer were not the real reasons
for the adverse employment decision.”

Id.

Because the

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
13

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.

younger individual.”

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
Rucker.”

Def.’s

Mot.

at

39

(Doc.

No.

48).

The

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
sufficient
Douglas.
Inc.,

196

indicium

of

qualification

under

McDonnell

See Damon v. Fleming Supermarkets of Florida,
F.3d

1354,

1360

(11th

Cir.

1999)

(“Our

precedent holds that if a plaintiff has enjoyed a long
14

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.

Santa Fe

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
plaintiffs

to

pretextual.

show
A

that

Santa

plaintiff

may

Fe’s

given

reason

is

meet

this

burden

by

persuading the court that a discriminatory reason “more
than

likely

demonstrating

motivated
that

the

the

employment
proffered

decision
reason

employment decision is not worthy of belief.”

or

for

by
the

Gray v.

City of Montgomery, 756 F. Supp. 2d 1339, 1345 (M.D. Ala.
2010) (Thompson, J.) (citing Burdine, 450 U.S. at 256)
15

(emphasis added).

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
to

“weaknesses,

incoherencies,

or

implausibilities,
contradictions”

inconsistencies,
in

the

employer’s

proffered explanation. Id. (quotes and internal citation
omitted).

That being the case, however, the plaintiffs

are

allowed

“not

to

recast

an

employer’s

proffered

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
simply

quarreling

with

the

wisdom

of

that

reason.”

Champan, 229 F.3d at 1030.
Here,

the

plaintiffs

rely

primarily

on

three

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
16

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.

2.
The parties spend much of their briefing disputing
whether the March 2008 memorandum had any effect on Santa
Fe’s contract with the Army.
memorandum

as

a

“policy

The plaintiffs refer to the
document”

that

amended

or

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
requirements.
The court rejects the plaintiffs’ approach to this
dispute.

At bottom, the plaintiffs appear to view the

dispute as contractual: if the Army’s contract with Santa
17

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
should

have

contract;

changed

instead,

discrimination,

Santa
for

the

Fe’s

purposes

question

is

behavior
of

under

the

ferreting

out

whether

Santa

Fe’s

interpretation of the contract was reasonable or was so
unreasonable
inferred.

that

a

discriminatory

motive

may

be

The Eleventh Circuit Court of Appeals has

emphasized that: Courts “do not sit as a super-personnel
department
decisions.

that

reexamines

an

entity's

business

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
interfere.

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
18

Cir. 1991) (internal quotes and citation omitted); see
also Cofield v. Goldkist, Inc., 267 F.3d 1264, 1269 (11th
Cir. 2011) (per curiam).
Santa

Fe’s

The plaintiffs may show that

interpretation

was

unreasonable

from

the

language in the documents at issue and from the parties’
conduct.
First, the record is totally devoid of evidence that
in

other,

differently.
when

similar

instances

Santa

Fe

has

acted

For example, there is no evidence that,

confronted

with

a

similar

contract

in

similar

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
passage

of

the

2006

PAT;

that

contracting

officer

Rentfrow told Santa Fe it should make passage of the PAT
a

condition

of

employment

and

19

that

he

oversaw

this

process; and that the conditional employment letters,
signed by all of the plaintiffs, were explicit about
treating

the

PAT

as

a

prerequisite

for

employment.

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
first place.
Third, Santa Fe’s view of the Provost Marshal’s
memorandum as non-binding is reasonable.

For starters,

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
by

the

plaintiffs

all

confirm

that

the

March

2008

memorandum did not modify the contract between Santa Fe
and the Army.
By

its

memorandum

terms,
was

to

the

“purpose”

“provide

of

the

guidance”

March
to

commands

regarding applicants who did not pass the PAT.
20

2008

2008

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.”

Id.

The result of this process, the memorandum advised, would
be

a

new

physical

PAT

with

similar,

requirements

though

and,

more

slightly

looser,

significantly,

an

exception for “temporary medical restrictions for those
who are unable to take the PAT or certain PAT events.”
Id.
The advisory effect of the memorandum is clear in the
paragraph

that

follows

the

“purpose”

statement:

The

paragraph uses the word “request” four times and ends
with a “recommendation.”
“request[ed]

commands

not

Specifically, the memorandum
to

take

adverse

personnel

actions on employees who do not pass the record PAT in
the current AR” and further “request[ed] this restriction
remain

in

published.”

effect

until

the

revised

Id. (emphasis added).

regulation

is

The memorandum also

“request[ed] ... Contracting Officers ... [to] notify
21

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
190-56

itself;

and

the

memorandum

AR

“request[ed]

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.”
actually

Id.

changed

(emphasis added).
Santa

Fe’s

If the memorandum

contract

such

hortatory

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
contracting officers:
“Army

staff

The Provost Marshal General, as an

principal,

not

a

commander,”

publishes

policy; is not involved in actual contracting; and does
not dictate to contracting officers what to put in or
22

keep out of a specific contract.

Id. at 67-68.

In

contrast, contracting officers like Rentfrow (not the
Provost

Marshal)

negotiate

individual

contracts

monitor compliance with Army directives.

and

Contracting

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.

Kamide emphasized

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
any

official

changes

to

AR

190-56,

the

March

2008

memorandum was “not an order” but rather was ”a request.”
Id.
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
Fe’s

contract.

The

plaintiffs
23

point

to

general

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
Marshal

generally.

Regulations

define

the

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
job

in

the

memorandum

abstract
into

a

does

not

contract

transform

an

advisory

alteration

or

binding

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
Provost

Marshal

controls),

these

regulations

are

incorporated into the PWS of a particular contract; a
24

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
clear

language

of

the

Memorandum

of

Agreement

(MOA)

signed by Santa Fe and the United Government Security
Officers of America Local #401 (Local #401), which is the
union for the security guards.
was

“to

set

forth

the

The “purpose” of the MOA

agreed

upon

procedure

for

implementation” of the 2006 PAT requirements. Memorandum
of Agreement, at 2 (Doc. No. 74-1).

This agreement,

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
Employer’

for

the

provision

of

uniformed

guard

and

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.”

25

Id.

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.
The
failure
of
an
employee
to
successfully complete the ‘PAT[]’ will
subject the applicant to termination.”
Id.

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
the workforce.”

Id. at 3.

But, if

26

“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
be
terminated.
A
failure
to
successfully complete the ‘PAT’ will be
considered just cause for termination
from employment.”
Id. at 4.
By

its

plain

language,

therefore,

the

MOA

contemplates adverse-employment action as a result of
failing the 2006 PAT.
the

plaintiffs’

recognized

that

That the union, which served as

exclusive
failure

to

bargaining
pass

the

unit,

2006

PAT

also
would

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
Fe’s

interpretation

of

its

contract

was

reasonable.

Moreover, even if the question were, as argued by the
plaintiffs,

whether

Santa

27

Fe’s

interpretation

was

actually correct, the court would have to conclude, for
the above reasons, that a reasonable factfinder would
have to answer yes.

3.
The fact that Gorski and Gentz did not have to take
the 2006 PAT is insufficient to establish pretext.
Fe

argues

that

Gorski

and

Gentz

are

not

Santa

similarly

situated to the plaintiffs because they were supervisors
and because “supervisors and their subordinates are not
proper comparators for purposes of a disparate treatment
claim.”

Def.’s Mot. at 42 (Doc. No. 48) (citing Mathis

v. Wachovia Bank, 255 F. App’x 425, 431 (11th Cir.
2007)).

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
not.

See, e.g.,

3)(“Physical

AR 190-56 at App’x G-2 (Doc. No. 49-

agility

testing

28

is

applicable

to

all

contract

or

contractor

guard

personnel

and

will

be

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
contracting
contract.

officer

in

charge

of

implementing

the

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
Gorski.

Again, the relevant question is not one of

contract interpretation, but rather whether Santa Fe’s
purported

reason

unreasonable.

for

not

hiring

Rentfrow’s

the

plaintiffs

ratification

of

was
this

“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
29

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
differences

between

security

guards’

duties,

responsibilities, treatment, and even history and those
of the Chief of Guards and his deputy.

Recall, for

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.

These differences

make Gentz and Gorski poor comparators for the purpose of
finding discrimination.

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
30

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
discipline

and

employment

policy),

the

plaintiffs’

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

these

employees

two

over-age-40

from

the

2006

PAT

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.

4.
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?
31

Don’t you think you should be doing something else?”
Crawford

Aff.

¶

7

(Doc.

No.

57-6).

This

comment,

however, does not do the work the plaintiffs need.
The plaintiffs’ claim is that Santa Fe’s decision to
require

the

2006

PAT

as

a

condition

of

employment,

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
April

when

contractual

Liming

met

with

requirements,

Liming hired Gentz.

a

Rentfrow
meeting

to
that

discuss
was

the

before

See, e.g., Liming Dep. (Doc. No. 49-

7, at 102) (“I had a meeting with the contract officer on
the

last

day

of

April,

of

2009,

at

which

contractual requirements were discussed.

time

...

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
32

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.

Thus, the

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.

5.
In conclusion, for all of the above reasons, the
court holds that Santa Fe is due summary judgment in its
favor

because

a

reasonable

factfinder

would

have

to

conclude that the company did not discriminate against
the plaintiffs because of their age.

33

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.
state

a

prima

facie

case

of

disparate

“[T]o
impact

discrimination, a plaintiff must establish that (1) there
is a significant statistical disparity among members of
different

[age]

groups;

(2)

there

is

a

specific,

facially-neutral employment policy or practice; and (3)
there is a causal nexus between the specific policy or
practice

and

Southern

Co.,

the
390

statistical
F.3d

disparity.”

695,

724

(11th

Cooper
Cir.

v.

2004)

(overruled on other grounds by Ash v. Tyson Foods, Inc.,
546 U.S. 454, 456-57 (2006) (per curiam)).
because

“age,

unlike

race

or

other

However,

classifications

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.

Id.

As a result, the ADEA includes an affirmative defense
“permitting any ‘otherwise prohibited’ action ‘where the
differentiation is based on reasonable factors other than
age,’”

id.

(quoting

29

U.S.C.

§

623(f));

thus,

an

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).

Although the

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

35

claims.2

“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
be

reasonable

despite

workers as a group.”

their

adverse

impact

on

older

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
definition.
36

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.

Restated

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.
37

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
condition.

A reasonable factfinder would therefore have

to conclude further that Santa Fe’s requirement of the
PAT

was

a

reasonable

factor,

other

than

age,

that

responded to the Army’s contractual requirements.

See

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
costs”).
38

The plaintiffs emphasize that Santa Fe asserts as an
affirmative

defense

that

a

third-party,

the

Army,

required the company to use the PAT; they argue that the
ADEA’s

affirmative

third-parties’

defense

does

requirements.

include

The

court

reliance

on

rejects

the

plaintiffs’ categorical rejection of third-party reliance
for

the

same

reason

that

the

court

would

reject

a

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
circumstances presented.

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.

39

Moreover, even if the focus were not on whether it
was reasonable for Santa Fe to rely upon the Army’s PAT
but

instead

on

whether

the

testing

standards

are

themselves reasonable, the conclusion would be the same.
First, a reasonable factfinder would have to conclude
that requiring a physical-agility requirement in general
was reasonable.
the

2006

PAT

It is undisputed that the Army developed
to

respond

to

staffing

concerns

given

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
in particular.
and

The PAT was the product of an extensive

comprehensive

process:

As

explained,

Physical

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
that

had

been

validated

by
40

an

outside

group;

after

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
the

2006

PAT

‘validated,’

was

that

unreasonable
is,

subjected

because
to

“the

it

was

not

process

of

determining whether a selection device is sufficiently
job-related to comply with the requirements of Title
VII.”

Ensley Branch of NAACP v. Seibels, 616 F.2d 812,

816 n. 11 (5th Cir. 1980).

While validation would be one

means

employment

to

reasonably

show

that

relied

an

upon

despite

requirement

adverse

impact

was
(and

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
41

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
standards
events

are

and

much

provided

less stringent,
for

included

alternative

exercises

new
fewer
and

temporary medical waivers”; and that, “Since the new AR
190-56

has

been

in

place,

security

not been terminated for failing the PAT.”

guards

have

Plaintiffs’

Resp. in Opp. to Def.’s Mot.for Sum. Jud. (Doc. No. 56)
at 33.

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
not unreasonable.

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
42

includes no such requirement.”

City of Jackson, 544 U.S.

at 243.

***

For the above reasons, the plaintiffs have failed as
a

matter

of

law

to

establish

their

ADEA

disparate-

treatment and disparate-impact claims. Santa Fe’s motion
for summary judgment will be granted on both of the
plaintiffs’

claims,

and

the

plaintiffs’

motion

for

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