Hunter v. Santa FE Protective Servs., Inc.

113 Fair Empl.Prac.Cas. (BNA) 1267

822 F.Supp.2d 1238

Jewel HUNTER, et al., Plaintiffs,

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

Civil Action No. 2:09cv1155–MHT.

United States District Court,M.D. Alabama,Northern Division.

Oct. 25, 2011.

Charles Neville Reese, Reese & Reese, Daleville, AL, Toni Jacqueline Braxton, Samuel Fisher, Wiggins Childs Quinn & Pantanzis, PC, Birmingham, AL, for Plaintiffs.

Allan G. King, Littler Mendelson, P.C., Dallas, TX, Aimee Pirone Keane, Jay Daniel St. Clair, Littler Mendelson, P.C., Birmingham, AL, Kimberly J. Gost, Littler Mendelson, P.C., Philadelphia, PA, for Defendant.

OPINION

MYRON H. THOMPSON, District Judge.

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 situated, charging that Santa Fe discriminated against them on the basis of age, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621–634.¹ The plaintiffs assert 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). For the reasons that follow, Santa Fe's motion will be granted and the plaintiffs' motion will be denied.

I. 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 conditional offers of employment with the company. By June 1, 2009, an applicant was required to meet four conditions: pass a background check, pass a physical-agility test (PAT), obtain firearm certification, and 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. After years of unclear physical-agility standards, AR 190–56 was significantly revised to include the PAT in 2006. Since 2006, the Army, through AR 190–56, has 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. Efforts began in the mid–1990s but were abandoned. 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 20–21). 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 three-day “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 complete 29 sit-ups in two minutes, a 300–meter sprint in 81 seconds, 21 push-ups in two minutes, and a one-and-a-half 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 CDA physical-fitness test had been administered annually in October, and all of 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 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.” Id.

Santa Fe's contract does not include 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.” PWS § 1.4.7.1 (Doc. No. 52–5), at 3. 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 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 ‘Chief of Guards,’ which is the highest-ranking civilian post at the base. Liming then hired Frank Gorski, another non-CDA employee, to be the Deputy Program Manager or ‘Deputy Chief.’ 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 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 Hanbury, 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.

II. DISCUSSION

The ADEA...