AARON WALTER ALSPAUGH V COMMISSION ON LAW ENFORCEMENT STANDARDS
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STATE OF MICHIGAN
COURT OF APPEALS
AARON WALTER ALSPAUGH and
RAYMOND KUJAWA,
FOR PUBLICATION
June 29, 2001
9:05 a.m.
Plaintiffs-Appellees,
v
No. 220156
Oakland Circuit Court
LC No. 98-003601-CZ
COMMISSION ON LAW ENFORCEMENT
STANDARDS, f/k/a MICHIGAN LAW
ENFORCEMENT OFFICERS TRAINING
COUNCIL,
Defendants-Appellants.
Updated Copy
September 14, 2001
Before: Hood, P.J., and Doctoroff and K. F. Kelly, JJ.
K. F. KELLY, J.
Plaintiffs Walter Alspaugh and Raymond Kujawa appeal as of right from the trial court's
decision granting defendant's motion for summary disposition and dismissing their claims of
gender and age discrimination. We affirm.
I. Overview
This appeal addresses the constitutional propriety of "gender-norming" physical fitness
performance standards in conjunction with a preemployment physical fitness test adopted and
implemented by the Michigan State Police. To attend the police academy and eventually become
a viable candidate for certification as a police officer, the candidate must first successfully
complete a performance skills test. The results of the test are gender-normed, ostensibly to
control for the innate physiological differences between the genders, with the top scoring male
and female candidates becoming eligible to attend the police academy. Plaintiffs contend that the
gender-norming process, which specifies different performance standards for men and women,
unfairly discriminates against them on the basis of their gender in contravention of the equal
protection provisions of the Michigan Constitution and the state Civil Rights Act (hereinafter
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CRA).1 Plaintiffs also allege that if gender-norming physical fitness performance standards is
constitutionally sanctioned, then defendant should also "age norm" the performance standards.
Plaintiffs contend that age norming is necessary to control for concomitant decreases in muscular
strength, endurance, and aerobic capacity attributable to the aging process. Consequently,
plaintiffs submit that defendant's failure to age norm the performance standards results in
unlawful age-based discrimination in violation of the equal protection provisions of the Michigan
Constitution and the CRA.
Defendant maintains that the primary objective of the physical fitness skills test is to
measure general physical fitness rather than establish the minimum physical requirements
necessary for law enforcement officers. In other words, the test was designed to ascertain general
fitness levels and, thus, separate the physically fit from the physically unfit, not to create
minimum performance standards required to become a police officer. If a candidate does not
pass the physical performance skills test, that candidate may retake the test as frequently as the
candidate pleases until that individual receives a passing score.
II. Defendant's Performance Skills Test
Defendant, the Commission on Law Enforcement Standards (hereinafter COLES),2 is the
state agency authorized by statute to promulgate rules establishing the minimum level of physical
fitness required for "recruitment, selection, appointment, and certification of law enforcement
officers." MCL 28.609(1)(a). Pursuant to that authority, the COLES developed the performance
skills test under the supervision and direction of a psychometrician, an industrial psychologist,
and an exercise physiologist. The test itself includes six different activities designed to measure
overall physical fitness vis-a-vis dynamic strength, explosive strength, speed, agility, and aerobic
capacity.3 Both males and females perform the same six events. However, to account for the
relative differences in strength between men and women due to the immutable physiological
1
MCL 37.2101 et seq.
2
The COLES is currently the agency charged with defining minimum physical fitness standards
for law enforcement officers and was formerly known as the Michigan Law Enforcement
Officers Training Council (MLEOTC.)
3
The six "events" that comprise the test are (1) the "combined handgrip," which measures grip
strength, (2) the "obstacle run," which measures the candidate's ability to run, drop down, crawl
through an obstacle, climb a barrier with handholds and footholds, and scale a wall, (3) the "165
lb. dummy drag," which measures muscular endurance, upper- and lower-body strength, and
aerobic capacity by the amount of time required to drag a life-form dummy thirty feet, (4) the "95
lb. carry-lift," which measures muscular endurance, upper- and lower-body strength, and aerobic
capacity by the amount of time required to carry a weighted duffel bag thirty feet and lift and
place the bag on a platform thirty-one-inches high, (5) the "60 seconds pushups," which measures
upper-body strength by how many pushups the candidate can perform during that interval of
time, and (6) the "half-mile shuttle run," which measures aerobic capacity and explosive strength
by the amount of time required to run that distance.
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differences between the genders and to thus eliminate the potential for an adverse impact on
female candidates,4 the council5 created different performance standards applicable to males and
females.6 The method employed to accomplish this task, was to "norm" the candidates'
performance by gender so that females are compared with females and males are compared with
males. In this way, it was possible to identify and select the most generally physically fit
candidates from each group. These candidates were then placed into the larger pool of those
individuals eligible to attend the police academy and eventually attain certification as police
officers.7
III. The Plaintiffs
Plaintiffs Aaron Alspaugh and Raymond Kujawa are both currently employed as deputy
sheriffs in the corrections division in Oakland County. Both Alspaugh and Kujawa took
4
In a document entitled "Validation of Entry-Level Police Officer Employment Tests," prepared
for the MLEOTC by a corporation contracted to develop testing procedures, it was noted that the
"basic physical skills test battery . . . consistently produced major male-female differences in the
test scores of applicants" and that the "adverse impact of this examination against women has
been pronounced."
5
At the time that the Validation of Entry-Level Police Officer Employment Tests document was
created, the MLEOTC was the council charged with establishing minimum standards of physical
fitness.
6
The different performance standards required for each candidate based on gender are as
follows:
Event
Male
Female
Pushups (Repetitions)
38-43
14-18
Grip-total (Klg.)
115-122
74-79
Obstacle Course (Seconds)
12.0-12.1
20.2-17.7
165 lb. Dummy Drag (Seconds)
7.9-7.4
14.3-12.4
95 lb. Dummy Carry (Seconds)
5.7-5.4
11.6-9.4
½ Mile Run (Min & Sec)
4:07.2-3:55.6
5.11.2-4:50.1
7
To establish a bell curve distribution of the candidates' raw scores, the raw test scores are
converted into "stanine scores" applicable to each of the six different events that are then
distributed into nine stanines to achieve the bell curve. This process allows for the bifurcation of
the female group, thus identifying the most physically fit individuals. Thereafter, a cutoff score
is established by considering how the candidates from the previous year performed. Once the
cutoff point for the female candidates is established and the percentage of women that passed is
ascertained, then that percentage of females receiving passing scores is then applied to the men's
group, a cutoff point is established so that comparable percentages of males and females attain
passing scores.
-3-
defendant's performance skills test, did not receive passing scores, and, accordingly, neither of
the plaintiffs became eligible to attend the police academy and eventually receive certification as
police officers. However, both would have received passing scores if their respective
performances had been evaluated pursuant to the standards applicable to the female candidates.
Thus, plaintiffs argue that defendant's "gender-norming" procedure amounts to intentional
gender-based discrimination in violation of the equal protection provisions contained in art 1, § 2
of the Michigan Constitution8 and the CRA. Plaintiffs also claim that if gender norming passes
constitutional muster, then the performance standards should also be "age normed" to account for
the relative decrease in muscular strength and general fitness as a result of the aging process.
Plaintiffs sought injunctive and declaratory relief for the alleged violations.9 Plaintiffs
appeal the trial court's decision granting defendant's motion for summary disposition pursuant to
MCR 2.116(C)(10) and further dismissing plaintiffs' complaint in its entirety. We affirm.
IV. Standard of Review
This court reviews de novo a trial court's decision granting or denying a motion for
summary disposition. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347; 597 NW2d
250 (1999). Incumbent on the court when considering a motion brought pursuant to MCR
2.116(C)(10) is to consider, in a light most favorable to the nonmoving party, all the
documentary evidence, along with all reasonable inferences drawn therefrom, to determine
whether a genuine issue of material fact exists upon which reasonable minds may differ.
Wilcoxon, supra at 358.
V. Plaintiffs' Claims of Intentional Gender-Based Discrimination
Plaintiffs argue that the performance skills test is not designed to assess general physical
fitness, but, rather, is designed to measure the minimum physical skills necessary to be a police
officer, and that gender-norming the scores gives preferential treatment to female candidates thus
constituting unlawful affirmative action. Plaintiffs argue that gender norming to avoid statistical
disparities by gender in passing rates is not substantially related to an important governmental
interest and violates the Equal Protection Clause of the Michigan Constitution and the CRA.
On the contrary, defendant argues that the justification for gender-norming the
performance standards is to eliminate the disproportionate impact or the possibility of disparate
impact discrimination on women because of their physiological characteristics. Defendant
maintains that ignoring the immutable physiological differences between males and females as
8
Const 1963, art 1, § 2.
9
Initially, plaintiffs sought monetary damages. However, plaintiffs subsequently stipulated to
dismiss their claim for monetary damages, thus leaving only plaintiffs' prayer for injunctive and
declaratory relief.
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regards the performance skills test would disproportionately exclude female candidates from that
pool of individuals eligible for certification as police officers. We agree.
A. Applicable Constitutional and Statutory Provisions
Article 1, § 2 of the Michigan Constitution provides in pertinent part:
No person shall be denied the equal protection of the laws; nor shall any
person be denied the enjoyment of his civil or political rights or be discriminated
against in the exercise thereof because of religion, race, color or national origin.
The CRA expanded the constitutional classifications of "religion, race, color or national
origin" to include age, sex, and marital status. MCL 37.2102(1) provides, in pertinent part, that
"[t]he opportunity to obtain employment . . . without discrimination because of . . . sex . . . is
recognized and declared to be a civil right." See also Neal v Dep't of Corrections (On
Rehearing), 232 Mich App 730, 739; 592 NW2d 370 (1998); Dep't of Civil Rights ex rel Forton
v Waterford Twp Dep't of Parks & Recreation, 425 Mich 173, 186; 387 NW2d 821 (1986)
(recognizing that the CRA broadened the constitutional classifications to include age, sex, and
marital status).
In Neal, supra at 734, the Court acknowledged that "[t]he purpose of the Civil Rights Act
is to prevent discrimination directed against a person because of that person's membership in a
certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and
biases." The Michigan Constitution guarantees equal protection of the laws, which means that
those who are similarly situated must receive the same treatment. In re Hawley, 238 Mich App
509, 511; 606 NW2d 50 (1999). Conversely, equal protection does not require the same
treatment be given those that are not similarly situated. Id.
Classifications based on gender are reviewed under the "intermediate" or "heightened
scrutiny" test and will pass constitutional muster only if the classification is "'substantially related
to an important governmental objective.'" Crego v Coleman, 463 Mich 248, 260; 615 NW2d 218
(2000) (citation omitted); Gora v Ferndale (On Remand), 217 Mich App 295; 551 NW2d 454
(1996). However, as the Court in Neal observed:
[M]erely because the state engages in a practice that treats men and
women differently, it does not necessarily mean that it engages in unlawful gender
discrimination. Rather, the test is whether the gender-based treatment serves a
sufficiently important governmental interest and is substantially related to the
achievement of that interest. [Neal, supra at 741.]
In Dep't of Civil Rights, supra at 202, our Supreme Court stated that "[f]acts and circumstances .
. . play a large part in assessing the end-means relationship. While the relationship need not be
perfect, it should be close." If the classification at issue does not pass this intermediate level or
heightened scrutiny, the classification is constitutionally infirm and, thus, must fall.
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With regard to gender discrimination, those federal civil rights cases interpreting title VII
of the federal Civil Rights Act of 1964, 42 USC 2000e et seq., and as amended, 42 USC 1983,
although not controlling, provide persuasive authority for considering and resolving cases
brought pursuant to Michigan's Civil Rights Act. Bedker v Domino's Pizza, Inc, 195 Mich App
725; 491 NW2d 275 (1992). Accordingly, we turn to those cases for general guidance. In Lynch
v Freeman, 817 F2d 380, 389 (CA 6, 1987), the court stated that "[a]natomical differences
between men and women are 'immutable characteristics,' just as race, color and national origin
are immutable characteristics." Thus, the issue becomes whether tests that control for inherent
"immutable" characteristics between males and females and thus provide differing standards
violate equal protection. We hold that they do not.
In United States v City of Wichita Falls, 704 F Supp 709 (ND Tex, 1988), a case cited
and relied on by plaintiffs, the court considered two separate and distinct tests: the physical
agility test and the physical assessment test. Whereas the physical agility test was "a test of
specific strengths and motor abilities directly related to the accomplishment of police functions,"
id. at 711, the physical assessment test was employed as a screening mechanism to analyze "the
general fitness of an individual instead of an individual's ability to perform certain tasks." Id. at
714 (emphasis added). The United States alleged that the physical assessment test discriminated
against women in violation of the provisions of a consent decree that enjoined the city from
"engaging in any act which had the purpose or effect of discriminating against any applicant . . .
for employment with the City of Wichita Falls Police Department because of their sex." Id. at
710. The court disagreed, stating that discrimination on the basis of gender would be
"impossible" relative to the physical assessment test because "[a]lthough women and men take
the same test, the standards against which they are compared are not the same. Women are
compared against women and men are compared against men." Id. at 714 (emphasis added).
The court went on to note that the physical assessment test at issue was validated through
"'construct validity,' meaning that the test accurately identifies characteristics necessary to
perform a job." Id. To that end, the court noted that it is "incontrovertible that police officers
must be in good physical condition to perform their job." Id.
B. Analysis
In the case at bar, defendant's practice of gender-norming physical fitness performance
standards creates a gender-based classification. However, as the Neal Court observed, that alone
is not sufficient to establish illicit gender-based discrimination. Gender-based classifications are
subject to heightened scrutiny and will overcome the constitutional challenge if substantially
related to an important governmental interest.
Like the physical assessment test employed in Wichita Falls, the documentary evidence
submitted in the case sub judice definitively establishes that the performance skills test at issue
herein is a test designed to assess general physical fitness, not to delineate the specific minimum
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fitness standards required to become a police officer.10 Gender norming ensures that the most
physically fit female candidates are placed into the larger pool of qualified applicants from which
different agencies may hire. 11
Reviewing plaintiffs' claim of gender-based discrimination occasioned by norming
performance standards according to gender, those courts that make a distinction between
inclusive procedures designed to increase the number of qualified applicants and those
procedures designed to exclude members of certain groups are particularly insightful. As one
court astutely observed, "non-discrimination is the foundation of inclusion, while discrimination
is a basis of exclusion." Shuford v Alabama State Bd of Ed, 897 F Supp 1535, 1552 (MD Ala,
1995). Indeed, ensuring the largest pool of qualified candidates is a desirable goal. In fact, "[a]n
inclusive recruitment effort enables employers to generate the largest pool of qualified applicants
and helps to ensure that minorities and women are not discriminatorily excluded from
employment. This not only allows employers to obtain the best possible employees, but it 'is an
10
Plaintiffs cite Lanning v Southeastern Pennsylvania Transportation Authority, 176 FRD 132
(ED Pa, 1997), to support their position. Lanning has a lengthy history indeed. On remand from
the United States Court of Appeals, 181 F3d 478 (CA 3, 1999), the court had to determine
whether the Southeastern Pennsylvania Transportation Authority (SEPTA) satisfied its burden of
establishing that the specified aerobic capacity required was the minimum capacity necessary to
successfully perform the job of a SEPTA transit police officer. On remand, Lanning v
Southeastern Pennsylvania Transportation Authority, 2000 WL 1790125 (ED Pa, 2000), the
court held that the SEPTA did indeed clearly demonstrate that the specific aerobic capacity
required is, in fact, the minimum aerobic capacity required for successful performance as a
SEPTA officer. Plaintiffs' reliance on Lanning is therefore misplaced. The aerobic-capacity
requirements at issue in Lanning were requirements that the SEPTA determined would be
necessary for the candidate, whether male or female, to perform successfully as a SEPTA transit
officer. That is not the issue raised herein. Unlike the aerobic-capacity requirement considered
in Lanning, a review of the entire record reveals that the performance skills test in this case was
not designed to identify specific fitness standards required to become a police officer. On the
contrary, the performance skills test was designed to assess general physical fitness. Because the
performance skills test in the case at bar differs significantly from the test at issue in Lanning, the
court's decision in Lanning is factually distinguishable and, thus, inapplicable to the issues
presented for resolution herein.
11
Dale Rothenberger is currently employed with the Department of State Police and is the
section chief for the Michigan Justice Training Commission, which is one of the sections of the
Commission on Law Enforcement Standards. Mr. Rothenberger worked for the Michigan Law
Enforcement Officers Training Council (MLEOTC), which became the Commission on Law
Enforcement Standards (COLES) in 1993. When Mr. Rothenberger worked for the MLEOTC,
one of his responsibilities in the late seventies and early eighties was to develop and administer
the performance skills test at issue herein. Mr. Rothenberger testified that the performance skills
test was developed in 1982 and 1983 with the first pilot test occurring in 1984. Mr.
Rothenberger further testified that he has been responsible for administering the performance
skills test since its inception. Mr. Rothenberger stated that "[w]e bifurcated the performance of
the women into a group of more fit people and a group of less fit to nonfit, unfit and that's where
we make the cut, and we go over and do the same thing with the men."
-7-
excellent way to avoid lawsuits.'" Duffy v Wolle, 123 F3d 1026, 1039 (CA 8, 1997) (citations
omitted).12 The only harm wrought by ensuring the largest possible pool of qualified candidates
is increasing competition between and among the most capable applicants for the position.13 The
Shuford court recognized that techniques of inclusion do not give rise to the traditional equal
protection or title VII analysis employed by those courts analyzing techniques designed to
exclude.
Although not confronted with an affirmative action program designed to remedy past
discrimination against women within the Michigan State Police Department, the
inclusive/exclusive dialogue is nonetheless instructive in considering the issues raised in the case
at bar. Defendant's gender norming the performance skills test to determine the most physically
fit female candidates relative to their gender is not designed to exclude viable male candidates,
but rather, is a measure designed to include viable female candidates.14 As the court in Shuford
explained, "[e]xpanding the pool is an inclusive act. . . . Exclusion occurs if . . . the best
candidate from the expanded pool fails to get the job because he was passed over for a woman.
This can only happen at the selection stage, which occurs after the pool expansion." Shuford,
supra at 1553 (emphasis added).
Defendant's practice of gender-norming the performance skills test is employed to
segregate the most physically fit candidates within each respective group by controlling for the
innate physiological differences between the genders and operates to expand the entire pool of
qualified applicants. Thus, defendant's practice of gender-norming the performance skills test is
an act of inclusion rather than exclusion.15 The performance skills test was a test neither
designed nor implemented to identify the minimum requirements to become a police officer.
Rather, the test was designed and appropriately "normed" to assess general physical fitness taking
into account immutable physiological differences between male and female candidates to ensure
12
See also Shuford, supra at 1552 (stating "because non-discrimination on the basis of sex is
required by law, the failure to take sex into account to insure non-discrimination can be illegal.
This should not be surprising because non-discrimination is the foundation of inclusion, while
discrimination is a basis of exclusion").
13
See United States v Paradise, 480 US 149, 183; 107 S Ct 1053; 94 L Ed 2d 203 (1987)
(identifying that the distinction between inclusion and exclusion means that "[q]ualified white
candidates simply have to compete with qualified black candidates").
14
See, generally, Duffy, supra, and Shuford, supra (discussing the differences between inclusive
gender-conscious techniques and techniques designed to exclude. The former is employed to
generate the largest pool of qualified candidates possible and thus increase competition. These
are desirable goals and do not provide the basis for a cognizable gender discrimination claim as
opposed to the latter, which represents the very core of discrimination itself).
15
In fact, Dale Rothenberger established that the performance skills test is a mechanism to
identify the most physically fit females and the most physically fit males to comprise "a qualified
pool of candidates from which agencies could hire that include both men and women."
-8-
that the most physically fit from each group would be eligible for eventual certification as police
officers.
Accordingly, the only "harm" to the male candidates occasioned by gender norming in the
instant case is that, to obtain certification as police officers, eventually, the male candidates must
compete "against a larger pool of qualified applicants," which neither is an "'appropriate
objection'" nor states a "cognizable harm." Duffy, supra at 1039 (citation omitted). See also
Barbera v Metro-Dade Co Fire Dep't, 117 F Supp 2d 1331 (2000) (holding that modifications to
the physical ability test to increase the number of qualified female applicants pursuant to the fire
department's affirmative action plan did not constitute unlawful gender-based discrimination).
Bearing these principles in mind, and upon review of the complete record, we hold that
defendant's gender-norming procedure is designed to control for the immutable physiological
differences between males and females and to, thus, determine and attain the same levels of
general physical fitness within each of the relative gender classes so that the most physically fit
individuals within each group are identified and become eligible for eventual certification as
police officers. The governmental interest in gender-norming the performance standards is to
avoid the potential for a disproportionate impact that a single standard would necessarily have on
the female candidates.16 Avoiding a disproportionate impact on females in the area of
employment is indeed an important governmental interest. Further, gender-norming the
performance standards to account for the immutable physiological differences in strength and
aerobic capacity between males and females is significantly related to that important
governmental interest.
Accordingly, we hold that defendant's process of gender-norming the physical
performance standards does not unlawfully discriminate against male candidates in violation of
the equal protection provisions of the Michigan Constitution or the CRA. On review de novo of
the record, we find that there is no genuine issue of material fact precluding defendant from
being granted summary judgment as a matter of law. Thus, we affirm the decision of the trial
court in this regard.
VI. Plaintiffs' Allegations of Age-Based Discrimination
Plaintiffs also contend that the performance skills test employed by defendant results in
"unequal treatment of plaintiffs because of their . . . age" in violation of the CRA.
Plaintiffs' claims of age discrimination are based on section 202 of the Civil Rights Act,17
which provides in pertinent part:
(1) An employer shall not do any of the following:
16
See n 3, supra.
17
MCL 37.2202.
-9-
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate
against an individual with respect to employment, compensation, or a term,
condition, or privilege of employment, because of . . . age . . . .
The fundamental requirement inherent in any claim alleging discrimination premised on
age, is to "establish . . . that age discrimination was a determining factor in the failure or refusal
to hire." Dubey v Stroh Brewery Co, 185 Mich App 561, 564; 462 NW2d 758 (1990). In other
words, the plaintiff must establish by competent evidence that the plaintiff had "qualifications
comparable to the person ultimately selected, but . . . that [the plaintiff 's] age was a determining
factor in the defendant's refusal to hire plaintiff." Id. at 564-565 (emphasis added).
Plaintiffs can set forth a cognizable claim of age discrimination on the basis of a theory of
intentional discrimination or by establishing that the practice at issue has a disparate impact on
individuals because of their age. Barnell v Taubman Co, Inc, 203 Mich App 110; 512 NW2d 13
(1993).
A review of the pleadings indicates that plaintiffs' main theory is that the performance
skills test has a disparate impact on the "older male candidates." To that end, plaintiffs argue
that there were significant statistical differences in passing rates between male candidates in the
seventeen to twenty-six age category and those candidates in the thirty-seven to forty-six age
category. Given the statistical disparity, plaintiffs argue that the burden necessarily shifts to
defendant to establish that the testing criteria were valid and job related. Further, plaintiffs
submit that if gender-norming the performance standards to control for the immutable
characteristics between males and females to avoid gender-based discrimination is desirable and
constitutionally sanctionable, then "age-norming" the performance standards to account for
physical deterioration unavoidably attributable to the aging process, is likewise desirable and
constitutionally sanctionable. Consequently, age-norming the performance standards should
also be employed to avoid discrimination based on age. We disagree.
In the case at bar, plaintiffs do not allege intentional discrimination, but, rather, allege
that defendant's performance skills test has a disparate impact on "older" male candidates.
Accordingly, to prevail under a disparate impact theory, plaintiffs must establish that they are
members of a protected class and that a facially neutral practice disproportionately impacts or
burdens them more harshly than others. Roberson v Occupational Health Centers of America,
Inc, 220 Mich App 322, 330; 559 NW2d 86 (1996); see, also, Squire v General Motors Corp,
174 Mich App 780, 784; 436 NW2d 739 (1989). Plaintiffs must not only establish membership
in a protected class, but must further establish that they were treated differently "than persons of
a different class for the same or similar conduct." Wolff v Automobile Club of Michigan, 194
Mich App 6, 11; 486 NW2d 75 (1992). The class distinctions for the purpose of analyzing
plaintiffs' age discrimination claim appear to be male candidates seventeen to twenty-six years of
age and male candidates thirty-seven to forty-six years of age.18 Plaintiffs claim that the passing
18
To further their disparate impact claim, plaintiffs submit that in 1995, the passing rate for male
candidates in the seventeen to twenty-six age group was 63.3 percent while the passing rate for
(continued…)
-10-
rate for the male candidates in the thirty-seven to forty-six age category was sixty-two percent
less than the passing rate for the male candidates in the seventeen to twenty-six age category,
thus establishing a disparate impact on the "older candidates."19
First, plaintiffs presume, rather than adequately establish, their alleged protected class
status. Plaintiffs do not show how male candidates in the thirty-seven to forty-six age category
who submit to defendant's performance skills test are a protected group relative to those in the
eighteen to twenty-six age category that also submit to the test. Plaintiffs offer statistics
ostensibly establishing a disparity in the passing rates between these two groups of male
candidates and from that conclude that the disparity was caused by the candidates' age. However,
plaintiffs otherwise fail to establish that the precipitating factor causing the statistical disparity
was the candidates' age as opposed to the candidates' failure to attain a general level of overall
physical fitness.
However, assuming arguendo, that the "older male candidates" could establish protected
class status for purposes of the CRA, plaintiffs' claim alleging age discrimination still fails. To
set forth a viable age discrimination claim, it is incumbent on plaintiffs to establish that they had
"comparable qualifications" to the individuals ultimately selected. See Dubey, supra at 564. The
performance skills test is a test that all candidates must pass to gain entry into the police academy
well before any decisions are made relative to actual employment.
The purpose of the test is to identify and select those individuals who have attained the
highest level of general physical fitness and then permit those individuals to attend the police
academy to eventually become certified as police officers. The plaintiffs herein did not pass the
initial performance skills test necessary to attend the academy. This indicates that plaintiffs have
not achieved an acceptable level of general physical fitness required to attend the academy in the
first instance and eventually become eligible for certification as police officers and ultimately
employed in that capacity. In other words, plaintiffs were not included in that group of
individuals who will become eligible for certification not because age was a "determining factor"
thereof, but, rather, because plaintiffs failed to attain an acceptable level of general physical
fitness. Accordingly, the "determining factor" was not necessarily the age of the plaintiffs, but
rather, plaintiffs' lack of overall general physical fitness.
(…continued)
male candidates in the thirty-seven to forty-six age group was only 29.1 percent. Plaintiffs
further submit that between January 1, 1993, and June 5, 1998, 61.5 percent of the male
candidates in the seventeen to twenty-six age group passed, while only 37.9 percent of the male
candidates in the thirty-seven to forty-six age group passed.
19
Plaintiffs cite Black v City of Akron, Ohio, 831 F2d 131 (CA 6, 1987), for the proposition that
a statistical disparity revealing a passing rate for a protected group that falls below eighty percent
of another similarly situated group is disparate impact per se. Because the passing rate for the
older male candidates is only sixty-one percent of the passing rate for the younger male
candidates, plaintiffs maintain that this constitutes disparate impact per se and the burden thus
shifts to defendant to establish that the physical performance skills test is "valid and job related."
-11-
Conceivably, a claim of age discrimination may obtain where the "older candidates" pass
the general physical fitness portion of the test, attend the academy, become eligible for
certification as police officers, and then are subsequently denied employment with an agency in
favor of a younger male candidate who perhaps did not perform as well. The employer may thus
fall prey to a potential claim alleging age-based discrimination. However, these suppositions are
not the facts presented on the record here before us and, thus, constitute nothing more than pure
speculation.
On the facts presented for our consideration in the case at bar, a review of the complete
record reveals that plaintiffs cannot establish an essential element necessary to sustain a viable
claim of age discrimination, specifically that plaintiffs had "qualifications comparable to the
person ultimately selected," and that the "determining factor" in the decision not to hire plaintiffs
turned on the age of the plaintiffs. Id. Because plaintiffs cannot establish "comparable
qualifications," and the requisite "determining factor" aspects of their age discrimination case,
plaintiffs are not entitled to the injunctive and declaratory relief sought.
VII. Conclusion
On the basis of the foregoing, considering all the documentary evidence in a light most
favorable to plaintiffs, and allowing plaintiffs the benefit of all reasonable inferences, we find
that there is no genuine issue of material fact upon which reasonable minds could differ, and thus
hold that the trial court properly summarily dismissed both of plaintiffs' claims pursuant to MCR
2.116(C)(10).
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Harold Hood
/s/ Martin M. Doctoroff
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