Sanchez v. Management Enterprise Development & Services, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DAVID SANCHEZ, )

)

Plaintiff, )

)

v. ) CIVIL ACT. NO. 2:19-cv-277-ECM

) (WO)

MANAGEMENT ENTERPRISE )

DEVELOPMENT & SERVICES, INC., )

et al., )

)

Defendants. )

MEMORANDUM OPINION and ORDER

I. Introduction

Now before the Court are Defendant Management Enterprise Development &

Services, Inc.’s (“MEDS”) and Defendant Frank Kendall III’s1 (“Air Force”) respective

Motions for Summary Judgment. (Docs. 53, 55). Plaintiff David Sanchez (“Sanchez”)

brings claims of age and disability discrimination, and unlawful retaliation, against both

Defendants. Because the Court agrees that the Defendants are entitled to judgment as a

matter of law, their respective motions for summary judgment are due to be GRANTED.

1 The named defendant is Heather A. Wilson, sued in her official capacity as Secretary of the Air Force.

Pursuant to Fed. R. Civ. P. 25(d), her successor, Frank Kendall III, is automatically substituted as a party.

For convenience and clarity, Kendall is referred to throughout as the “Air Force.”

II. Background2

MEDS is a company that provides, among other things, physical therapist staffing

to various health care facilities around the country. Per a 2012 contract, MEDS provided

physical therapy staff to the United States Air Force at Maxwell Air Force Base

(“Maxwell”) in Montgomery, Alabama. The contract included a Performance Work

Statement that required certain performance obligations as well as a 95% compliance with

a Patient Sensitivity requirement that stated:

Contract personnel shall respect and maintain the basic rights of patients,

demonstrating concern for personal dignity and human relationships.

Personnel receiving complaints validated by the COR and Chief of the

Medical Staff shall be subject to counseling and, depending on the nature and

severity of the complaint, separation from performing services under this

contract.

(Doc. 57-2 at 21).

In September 2012, Sanchez was the physical therapist chosen for the job. Sanchez,

born in 1963, had previously spent fifteen years in the United States Navy as an air traffic

controller and fifteen years in the Air Force as a physical therapist. As he approached the

end of his Air Force tenure, Sanchez began having orthopedic issues with his arms, legs,

and spine, as well as vision problems. Upon his departure, the Department of Veteran

Affairs gave Sanchez a disability rating of 80%.

Sanchez was hired by MEDS thereafter to be Maxwell’s staff physical therapist.

However, though MEDS was Sanchez’s ostensible employer, the contract between MEDS

2 Since this comes before the Court on the Defendants’ motions for summary judgment, the Court construes

the facts in the light most favorable to the non-movant, Sanchez, and draws all justifiable inferences in his

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

and the Air Force indicated that Sanchez was “subject to the day-to-day supervision and

control of employees of the United States.” (Id. at 14). It further indicated that the “Quality

Assurance Personnel and applicable Flight Commanders [would] provide the supervision

and control where the services [would be] performed.” (Id.).

Later, in October 2016, the Air Force appointed Major Erin O’Connor

(“O’Connor”) as the officer in charge of physical therapy at Maxwell, and thus, Sanchez’s

direct supervisor. Friction between the two began almost immediately.

Sanchez’s claims spotlight several times the two clashed. Despite his orthopedic

disabilities, Sanchez stayed active, often exercising during his lunch breaks and winning

awards for triathlons outside of work. During one of Sanchez’s lunch weightlifting

sessions, O’Connor laughed at what he was able to lift, asked why he could only lift that

much, and ridiculed him that he should be lifting more. (Doc. 57-1 at 18–19). Sanchez

responded that he had a bad back and shoulder, and so could not lift any more.3 Admittedly,

Sanchez “didn’t make much” of O’Connor’s comments, but rather considered them to be

sarcastic ribbing. (Id. at 22).

O’Connor’s antagonism went beyond her weightlifting jokes. During a different

incident, O’Connor called Sanchez a “scatterbrain.” (Id. at 24–26). She also “put a fist up

to [him], telling [him] not to mark her down on her peer review.” (Id. at 13). Sanchez

reported both incidents to a variety of MEDS and Air Force employees. However, at no

time did O’Connor, nor anyone at MEDS, directly mention Sanchez’s age or disability.

3 It is unclear from the record how many incidents like this occurred, but Sanchez claims at least two.

As their animosity reached a peak, O’Connor sent emails complaining about

Sanchez to other Air Force personnel, accusing him of failing to follow appropriate

procedures, showing up late to work, failing to meet patient quotas, and staying at work

past the close of his contract hours. That animosity also showed up on Sanchez’s peer

reviews. Each month during his employ, Sanchez was evaluated by his supervisor on

factors like overall performance, adherence to work schedules, and patient and customer

satisfaction. During much of his MEDS career, Sanchez’s overall performance and patient

satisfaction was evaluated as “satisfactory” to “exceptional.” (See Doc. 61-7 at 1–20).

However, when O’Connor began evaluating Sanchez, his scores dropped precipitously,

sliding from satisfactory in May 2017 to unsatisfactory later that year. O’Connor also, on

at least one evaluation, referred to Sanchez’s therapy techniques as “old school.” (Doc. 63-

2 at 13).

Under O’Connor, Sanchez also began to receive more patient complaints. During

the two years prior to O’Connor’s arrival, Sanchez received only two patient complaints

(one of which he was cleared of wrongdoing for). But after O’Connor became Sanchez’s

supervisor, additional patient complaints began to roll in (at O’Connor’s urging patients to

create a record of the occurrence):

 One complained that Sanchez “spoke down” to them, made them “feel

like an idiot,” and only spent five minutes out of a ninety-minute visit

asking the patient’s view on health. (Doc. 61-8 at 7). The patient also

complained that Sanchez spoke extensively about his treatment

philosophy but did not develop them a treatment plan. (Id.).

 One complained that Sanchez was the worst part of their six-week

physical therapy regimen, and that he once walked out of a scheduled

appointment without treating the patient. (Id. at 6).

 One complained that Sanchez stated he would not treat her because

she was pregnant, and that she had nothing to show for their forty-

minute meeting. (Id. at 11–12).

 One complained that Sanchez “called [them] fat and made jokes about

[their] weight gain.” (Id. at 9). They further complained that Sanchez

told them they should go on the show “Naked and Afraid.” (Id.).4

 One, in a comment card complimenting O’Connor’s treatment, stated

that Sanchez had “poor bedside manner.” (Id. at 10).

 One complained that they “felt judged regarding [their] physical

limitations” during a treatment session with Sanchez, and that

Sanchez had grabbed their stomach fat during the session and noted

that they did not possess muscles under the fat. (Id. at 3). The

complainant hoped “other patients don’t leave [Sanchez’s] office

feeling as demoralized as [they] did.” (Id.).

 One stated that they were “[e]xtremely disappointed in [their]

meeting/consultation with Dr. Sanchez,” and complained that during

the meeting, Sanchez “spent most of the time telling [them] how

wrong [they] are in [their] fitness goals,” a comment the patient found

“accusatory instead of helpful.” (Doc. 61-8 at 2). The patient deemed

the visit “the most unproductive and worst visit [they’ve] ever had

with a physician.” (Id.).

Several complaining patients requested to be switched from Sanchez to O’Connor (and

several complaints were received after patients made that switch). However, during the

same period, Sanchez also received positive reviews, even as he saw a far greater number

of patients than O’Connor did.

Amidst strife with O’Connor, in May 2017 Sanchez went to Lieutenant Colonel

Ryan Mihata (“Mihata”), the Medical Operations Squadron Commander and O’Connor’s

4 Naked and Afraid is an American reality TV show in which contestants must survive, nude, in the

wilderness for several weeks. Contestants often lose weight during the experience.

supervisor, to complain. During that meeting, Mihata suggested that Sanchez’s and

O’Connor’s disagreements stemmed from the fact that he was “out of touch with new

concepts,” and not “fresh from school” like O’Connor was. (Doc. 61-5 at 6). Mihata told

Sanchez that he believed the dispute should “get worked out at the lowest level,” but

nevertheless thanked Sanchez for the intel. (Id.).

Despite Mihata’s attempts to talk Sanchez down, Sanchez continued to alert MEDS

and Air Force employees that he believed O’Connor was harassing and retaliating against

him—though no such complaint explicitly mentioned any hostility or discrimination based

on Sanchez’s age or disability. However, his complaints did state that he believed the

harassment to be an “equal opportunity issue, which is escalating[,]” (doc. 63-6 at 5), and

Sanchez discussed the prospect of taking his complaints to the Equal Employment

Opportunity office with several MEDS and Air Force employees. Sanchez eventually

elevated his complaints to MEDS’s human resources director, Sonya Harris (“Harris”), and

to Maxwell’s Chief of Medical Staff, Major Ross Graham (“Graham”), neither of whom

ameliorated the situation. In September 2017, Sanchez informed Graham that O’Connor

had raised a fist to him, and that Mihata had told him that he was old and out of touch.

Sanchez explained that he believed O’Connor’s actions amounted to harassment and a

hostile work environment, and that Mihata’s comments were discriminatory because of

Sanchez’s age. MEDS’ CEO, Stanley McCall, was also copied on an email, sent by Harris,

informing Nikki Klinger, the Air Force Service Contract Manager, that Harris had received

a statement of harassment allegations from Sanchez.

Meanwhile, back in June 2017, Sanchez, MEDS, and Air Force personnel met to

discuss Sanchez’s complaints, as well as the Air Force’s concerns about Sanchez’s

performance. At the meeting, Sanchez complained of a poor working relationship with

O’Connor, but did not raise any issue of age or disability discrimination or harassment.

Either way, the meeting ended with MEDS believing the personal and professional issues

Sanchez was having would be cleared up and required no further intervention (even though

MEDS continued to follow up all the same).5

The problems did not clear up. Instead, in October, the Air Force issued MEDS a

Corrective Action Report, which noted that given the numerous complaints against him,

Sanchez had failed to satisfy the Patient Sensitivity requirement of the MEDS-Air Force

contract. The next day, MEDS sent a letter to Sanchez, informing him that it had received

complaints about his treatment of patients and demanding a plan of “immediate, corrective

action” concerning his behavior. (Doc. 61-12 at 1). That same day, Harris informed the

Air Force that MEDS had done so, and that upon receipt of Sanchez’s corrective plan,

MEDS would determine what discipline was warranted. She indicated that MEDS was

considering a suspension or further training but did not mention potential termination.

Sanchez requested, and was granted, additional time to respond. Sanchez obliged

within the week, attempting to rebut some performance concerns while continuing to allege

that O’Connor had established a “hostile/harassing/vindictive” work environment, and had

sent him warnings as “retaliation.” (Doc. 61-9 at 1). He believed many of the complaints

5 MEDS also addressed with Sanchez issues with his tardiness and his working late in August 2017.

to be misunderstandings or miscommunications, and argued that in many of the situations

described, he was in the right. He also described in detail his disagreements with

O’Connor, and complained about the incident with Mihata “hit[ting him] with age

discrimination.” (Id. at 9).

A few days later, McCall, MEDS’s CEO, sent Sanchez a notice of termination.

McCall explained that after reading Sanchez’s response, he saw nothing there that was

“within the CEO of MEDS[’] authority to effect any change other than [Sanchez’s]

behavior.” (Doc. 61-14 at 1). McCall made clear that there was “no acceptance of any

responsibility from [Sanchez,] . . . [and] no demonstration of remorse, empathy or

compassion for the patients.” (Id.). Thus, McCall wrote, he “[could] not allow services

provided under the name of MEDS to continue with this level of dissatisfaction,” and so

decided to terminate Sanchez. (Id.). Sanchez filed a charge of age and disability

discrimination with the EEOC a month later.

Roughly a year after that, in September 2018, the MEDS contract with the Air Force

expired and was not renewed. Seven months later, Sanchez filed suit. He now brings nine

total claims: claims of unlawful age discrimination and retaliation pursuant to the Age

Discrimination in Employment Act (“ADEA”) against MEDS and the Air Force (Counts

I, II, V and VI); unlawful discrimination on the basis of a disability and retaliation pursuant

to the Americans with Disabilities Act (“ADA”) against MEDS (Counts III and VII); and

unlawful discrimination on the basis of a disability and retaliation pursuant to the

Rehabilitation Act against the Air Force (Counts IV and VIII). Both Defendants moved

for summary judgment on all claims, motions to which the Court now turns.

III. Jurisdiction

The Court has subject matter jurisdiction over this dispute pursuant to

28 U.S.C. § 1331. There remains a question (discussed below) of whether the Air Force

has waived sovereign immunity for the claims that Sanchez brings, and thus whether the

Court has subject matter jurisdiction over them. The parties do not contest personal

jurisdiction or venue, and the Court concludes that venue properly lies in the Middle

District of Alabama. See 28 U.S.C. § 1391.

IV. Analysis

A reviewing court shall grant a motion for summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant can meet this burden by

presenting evidence demonstrating there is no dispute of material fact, or by showing that

the non-moving party has failed to present evidence in support of some element of his case

on which he bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

322–23 (1986). Only disputes about material facts will preclude the granting of summary

judgment. Anderson, 477 U.S. at 249. “An issue of fact is ‘genuine’ if the record as a

whole could lead a reasonable trier of fact to find for the nonmoving party. . . . An issue is

‘material’ if it might affect the outcome of the case under the governing law.” Redwing

Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting

Anderson, 477 U.S. at 248).

Once the movant has satisfied this burden, the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-

movant must support his assertions “that a fact cannot be or is genuinely disputed” by

“citing to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . , admissions,

interrogatory answers, or other materials” or by “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B).

In determining whether a genuine issue for trial exists, the Court must view all the

evidence in the light most favorable to the non-movant. McCormick v. City of Fort

Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the Court must draw all

justifiable inferences from the evidence in the nonmoving party’s favor. Anderson, 477

U.S. at 255. However, “mere conclusions and unsupported factual allegations are legally

insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326

(11th Cir. 2005) (per curiam).

a. MEDS’ Motion for Summary Judgment

Against MEDS, Sanchez brings claims of unlawful age and disability discrimination

in violation of the ADEA (Count I) and the ADA (Count III), respectively. The ADEA

prohibits an employer from discharging, “or otherwise discriminat[ing] against any

individual [over the age of forty] with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age.” 29 U.S.C. §§ 623(a)(1),

631(a). Similarly, the ADA prohibits covered entities from discriminating “against a

qualified individual on the basis of disability in regard to . . . the hiring, advancement, or

discharge of employees . . . and other terms, conditions, and privileges of employment.”

42 U.S.C. § 12112(a). Sanchez argues he has shown that a genuine issue of material fact

exists as to MEDS’ intention in terminating him, and thus that summary judgment is

improper. MEDS disagrees, arguing that it is entitled to summary judgment because

Sanchez has not demonstrated a prima facie case of age or disability discrimination, or in

the alternative if he has, that Sanchez cannot demonstrate that MEDS’ proffered

explanation is little more than pretext for unlawful discrimination.6

The Court turns first to Sanchez’s claim of age discrimination. Age discrimination

can be established through either direct or circumstantial evidence. Van Voorhis v.

Hillsborough Cnty. Bd. of Cnty. Commr’s, 512 F.3d 1296, 1300 (11th Cir. 2008) (citation

omitted). Sanchez explains that his claim rests only upon circumstantial evidence. (Doc.

61 at 22). To establish a circumstantial case of age discrimination, Sanchez must satisfy a

burden shifting framework. Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th

Cir. 2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). First,

Sanchez must establish a prima facie case of discrimination. See Lewis v. City of Union

City (Lewis I), 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). To do so, he must

demonstrate “(1) that [he] belongs to a protected class, (2) that [he] was subjected to an

6 MEDS also argues that it is entitled to summary judgment because Sanchez asserts several claims that

are each analyzed under a but-for test of causation. MEDS contends that since Sanchez’s age and alleged

disability cannot both be but-for causes of his termination, summary judgment is appropriate for both

claims. This argument appears foreclosed by the Supreme Court’s language in Bostock v. Clayton County,

140 S. Ct. 1731, 1739 (2020) (“Often, events have multiple but-for causes.”); see also Keller v. Hyundai

Motor Mfg., 513 F. Supp. 3d 1324, 1330 (M.D. Ala. 2021) (explaining that the same argument “crashes,

Wile E. Coyote-esque, into veritable mountains of contrary precedent” and citing Bostock). However,

because Sanchez’s claims fail on other grounds, the Court here assumes without deciding that a plaintiff

can sustain multiple claims subject to but-for causation analysis.

adverse employment action, (3) that [he] was qualified to perform the job in question, and

(4) that [his] employer treated ‘similarly situated’ employees outside [his] class more

favorably.” Id. (citations omitted). If he shows all four, the burden shifts to MEDS to

“articulate a legitimate, nondiscriminatory reason for its actions.” Id. at 1221 (citing Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If MEDS meets its

“exceedingly light” burden of production, Perryman v. Johnson Products Co., 698 F.2d

1138, 1142 (11th Cir. 1983), the burden returns to Sanchez to demonstrate that MEDS’

reason is just pretext for unlawful discrimination. Crawford v. Carroll, 529 F.3d 961, 976

(11th Cir. 2008) (citations omitted). While the burden of production shifts, the burden of

persuasion “always remains on [Sanchez] . . . to proffer evidence sufficient to permit a

reasonable fact finder to conclude that the discriminatory animus was the ‘but-for’ cause

of the adverse employment action.” Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir.

2013) (citation omitted).

MEDS argues that Sanchez fails to produce sufficient evidence to establish a prima

facie case of age discrimination. To demonstrate a prima facie case of age discrimination

in violation of the ADEA, Sanchez must demonstrate that he was (1) over the age of forty;

(2) subject to an adverse employment action; (3) was replaced by someone substantially

younger than himself; and (4) was qualified to do the job. Liebman, 808 F.3d at 1298

(citation omitted). It is undisputed that Sanchez is over the age of forty and was subject to

an adverse employment action (i.e., his termination). However, Sanchez points to no

evidence that someone “substantially younger” than himself assumed his role (or was

treated better than him in any capacity). That alone dooms his ability to demonstrate his

prima facie case and his concomitant burden under McDonnell Douglas. Sanchez does not

argue otherwise—though he spends considerable time explaining how he was treated on

the job, he does not explain how this treatment establishes a prima facie case of age

discrimination under McDonnell Douglas.

Instead, Sanchez notes that even if he cannot meet his burden under McDonnell

Douglas, the shifting framework is “not the sine qua non for a plaintiff to survive summary

judgment in a discrimination case.” (Doc. 61 at 22 (quoting Smith v. Lockheed-Martin

Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). Sanchez can also survive summary

judgment if “he presents circumstantial evidence that creates a triable issue concerning the

employer’s discriminatory intent.” Sims, 704 F.3d at 1333 (citation omitted). Such an issue

of fact exists “if the record, viewed in a light most favorable to [Sanchez], presents a

convincing mosaic of circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Id. (emphasis added) (quotations and citation

omitted). Sanchez can tile a convincing mosaic if he points to evidence like “(1) suspicious

timing, ambiguous statements . . . , and other bits and pieces from which an inference of

discriminatory intent might be drawn, (2) systematically better treatment of similarly

situated employees, and (3) that the employer’s justification is pretextual.” Lewis v. City of

Union City (Lewis II), 934 F.3d 1169, 1185 (11th Cir. 2019) (quotations and citation

omitted).

Sanchez does not do so. His age discrimination claim rests upon only two

comments—that O’Connor called him “scatterbrain” and Mihata said he was “out of

touch,” unlike O’Connor—not uttered by anyone employed by MEDS or directly involved

in the decision to terminate him. See Mitchell v. USBI Co., 186 F.3d 1352, 1355 (11th Cir.

1999) (holding “comments by non-decisionmakers do not raise an inference of

discrimination, especially if those comments are ambiguous,” and collecting cases).7

Sanchez does not point to any statement nor any suspicious timing in his termination

process that suggests discriminatory animus by the decisionmaker, MEDS CEO McCall.8

Sanchez also fails to argue for or produce evidence of any systematic treatment of

similarly situated employees that was better than he received. He provides no evidence or

argument that indicates MEDS treated a similarly situated employee better than it treated

him. Instead, Sanchez admits that O’Connor, the focus of his claim (but who is not

employed by MEDS), acted with hostility towards other providers in the clinic and was

generally strict to everyone regarding perceived failures in their standard of care. (Doc. 57-

1 at 30).

Nor does Sanchez support that MEDS’ justification was pretextual. “Conclusory

allegations of discrimination, without more, are not sufficient to raise an inference of

pretext . . . .” Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996)

(quotations and citation omitted). Instead, Sanchez needs to meet MEDS’ justifications

7 Discriminatory animus could also be demonstrated if Sanchez shows that McCall, following the biased

recommendation of O’Connor, terminated him without independently investigating the complaints against

him—a theory of liability known as the “cat’s paw.” See Stimpson v. City of Tuscaloosa, 186 F.3d 1328,

1332 (11th Cir. 1999). Sanchez neither asserts nor argues any such theory of liability is applicable to this

case, and the record does not demonstrate that O’Connor recommended McCall terminate Sanchez or

otherwise influenced his decision in any way.

8 And any such showing would be difficult to make: McCall is older than Sanchez. See Elrod v. Sears,

Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir. 1991) (noting the plaintiff “face[d] a difficult burden . . .

because all of the primary players behind his termination . . . were well over age forty and within the class

of persons protected by the ADEA,” making them “more likely to be the victims of age discrimination

than its perpetrators”).

“head on and rebut [them].” Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1314–15

(11th Cir. 2016) (quotations and citation omitted). The evidence he produces must reveal

“such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable fact finder could

find them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th

Cir. 1997) (quotations and citation omitted). It does not matter what Sanchez thinks or

what the “reality as it exists outside of the [decisionmaker’s] head” is—all that matters is

what McCall believed. Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203, 1218 (11th Cir.

2021) (quotations and citation omitted).

Sanchez does not reveal any such incoherencies. He acknowledges that the

complaints were written by patients, were valid, and, from MEDS’ perspective, were worth

acting on. Sanchez does not argue (or even allege) that the complaints against him were

fabricated or hyperbolic. For months, MEDS maintained that it was concerned about his

negative patient reviews. It met with Sanchez before the Air Force issued its Corrective

Action Report, gave him a warning and an (extended) chance to respond to the report after

it was issued, and fired him for explicated reasons consistent with its earlier concerns.

Nothing Sanchez produces lays a “convincing mosaic” that would present a triable question

of fact about MEDS’ intent in firing him.

All told, Sanchez does not establish that his age “actually played a role in [MEDS’]

decisionmaking process and had a determinative influence on the outcome,” McQueen v.

Wells Fargo, 573 F. App’x 836, 839 (11th Cir. 2014) (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)), and so summary judgment as to Count I

is due to be granted to MEDS.

Sanchez’s claim of disability discrimination in violation of the ADA, Count III, fails

for the same reasons.9 Just as with age discrimination under the ADEA, disability

discrimination under the ADA can be proven through direct or circumstantial evidence.

See Schultz v. Royal Caribbean Cruises, Ltd., 465 F. Supp. 3d 1232, 1262–63 (S.D. Fla.

2020) (“To establish a case of intentional discrimination in violation of the ADA, a plaintiff

may rely on direct or circumstantial evidence . . . .”). Direct evidence of discrimination is

evidence that “reflects a discriminatory or retaliatory attitude correlating to the

discrimination or retaliation complained of by the employee.” Id. (quotations and citation

omitted). It is evidence “which, if believed, would prove the existence of a fact without

inference or presumption.” Carter v. City of Miami, 870 F.2d 578, 581–82 (11th Cir. 1989).

“[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate

on the basis of age . . . constitute direct evidence of discrimination.” Id. at 582 (footnote

omitted). By comparison, stray remarks, “statements by nondecisionmakers or statements

by decisionmakers unrelated to the decisional process at issue” are insufficient to be direct

9 The ADA recognizes three theories of disability discrimination: disparate treatment, disparate impact,

and a failure to reasonably accommodate. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1209

(11th Cir. 2008). The three theories require different showings by the plaintiff—“the central difference

between disparate treatment and disparate impact claims is that disparate treatment requires a showing of

discriminatory intent and disparate impact does not.” E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263,

1278 (11th Cir. 2000) (citation omitted). Though Sanchez does not make explicitly clear under which

theory he proceeds, he argues that MEDS discriminated against him because he is disabled and, in its

eyes, unable to perform his job, rather than via application of some facially neutral policy (the foundation

of a disparate impact claim), or because he required an accommodation that was not provided.

Accordingly, the Court treats his claim as one of disparate treatment.

evidence of discrimination. Steger v. Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003)

(quotations and citation omitted). So too is evidence that only suggests discrimination, see

Earley v. Champion International Corp., 907 F.2d 1077, 1081–82 (11th Cir. 1990), or that

is subject to multiple interpretations, see Harris v. Shelby County Board of Education, 99

F.3d 1078, 1083 n.2 (11th Cir. 1996), insufficient to constitute direct evidence.

Unlike with his ADEA discrimination claim, Sanchez is not explicit about whether

he believes the evidence of disability discrimination he proffers is direct or circumstantial.

However, he points to nothing so egregious as to qualify as direct evidence of

discrimination. Sanchez’s disability discrimination claim rests on a single kind of incident:

that O’Connor teased him about how much weight he could lift, said he should be lifting

more, and occasionally smirked at him. O’Connor’s comments differ in kind from those

recognized as direct evidence of discrimination. See, e.g., Schultz, 465 F. Supp. 3d at 1263

(“For example, in an ADA case, a decisionmaker’s blanket statement that people with a

certain disability are not competent to perform a particular job would amount to direct

evidence of discrimination.” (quotations and citation omitted)). O’Connor’s comment

neither directly mentions, nor alludes to, Sanchez’s (or anyone else’s) disability, and makes

no reference to how his disability affects his qualifications as a physical therapist. At best,

O’Connor’s statements reach Sanchez’s disability only through an attenuated inference,

the kind insufficient to constitute direct evidence of discrimination. And, of course,

O’Connor is not a MEDS employee, nor the decisionmaker in Sanchez’s termination.

Sanchez points to no evidence that someone in the employ of MEDS made any comment

directly discriminatory about his disability—on the contrary, he admits that no one did.

So instead, Sanchez must support his claim with circumstantial evidence by

satisfying the same shifting McDonnell Douglas framework. See Earl v. Mervyns, Inc., 207

F.3d 1361, 1365 (11th Cir. 2000). 10 First, Sanchez must establish a prima facie case of

disability discrimination by showing that he is disabled, otherwise qualified to perform the

job, and that he was discriminated against based upon his disability. Cleveland v. Home

Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). The next two steps proceed

the same way as in the ADEA context: if Sanchez satisfies his prima facie burden, MEDS

must produce a legitimate, nondiscriminatory reason for the adverse employment decision,

which Sanchez must then rebut as pretextual. Lewis I, 918 F.3d at 1221 (citation omitted).

As an initial matter, the Court assumes without finding that Sanchez satisfies his

prima facie case and establishes a presumption of discrimination. However, that

presumption of discrimination falls away once MEDS produces sufficient evidence

demonstrating a non-discriminatory purpose for the challenged adverse action. MEDS

satisfies this “exceedingly light” burden of production: it provides substantial evidence

that Sanchez’s termination was predicated upon numerous patient complaints—and

Sanchez’s failure to accept responsibility for those complaints—rather than upon any

discrimination.

10 MEDS indicates it believes that whether the McDonnell Douglas framework applies to ADA claims

after the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), is an

open question in the Eleventh Circuit. However, the Eleventh Circuit has continued to apply the

framework in just those sorts of cases post-Gross. See Todd, 998 F.3d at 1215–19 (applying McDonnell

Douglas in an ADA discrimination claim); Batson v. Salvation Army, 897 F.3d 1320, 1328–29 (11th Cir.

2018) (applying McDonnell Douglas in an ADA retaliation claim).

Thus, the burden returns to Sanchez to demonstrate that MEDS’ proffered reason

was merely pretext for disability discrimination. He must “cast sufficient doubt on

[MEDS’] proffered nondiscriminatory reasons to permit a reasonable factfinder to

conclude that the employer’s proffered legitimate reasons were not what actually motivated

its conduct.” Crawford, 529 F.3d at 976 (quotations and citation omitted).

Once again, he fails to do so: Sanchez produces no evidence to indicate that

McCall’s reasons were pretextual. As noted, Sanchez himself admits that the complaints

are real, that (in most cases) he did the complained-of act, that they were worthy of (at a

minimum) investigation, and that he could not recall McCall, nor anyone else at MEDS,

ever saying or doing anything discriminatory towards him.

Nevertheless, Sanchez makes two different arguments. First, he asserts that the

complaints were largely subjective, complaining about things like his bedside manner or

how his style of treatment differed from the treatment the patients themselves preferred.

But Sanchez does not make clear why MEDS was obligated to treat subjective complaints

differently, or demonstrate that MEDS normally treats those complaints differently such

that its departure here gives rise to an inference of discrimination.

Sanchez also argues that MEDS did not consider his positive reviews in terminating

him. Maybe so. But the Court is “not in the business of adjudging whether employment

decisions are prudent or fair.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d

1354, 1361 (11th Cir. 1999). MEDS was free to consider only the complaints against

Sanchez, rather than praise for him, if it so chose, so long as that decision did not rest on a

discriminatory basis. But Sanchez produces no evidence that it did—he does not

demonstrate anything that would allow a jury to “reasonably infer discrimination” by

McCall in making that choice. Id. (quotations and citation omitted).

All told, Sanchez does not point to any weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in MEDS’ justifications, let alone enough

to allow a factfinder to call MEDS’ justifications into doubt. He does not demonstrate

“both that the [proffered] reason was false, and that discrimination was the real reason.”

Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)

(quotations and citation omitted) (emphasis in original). As such, Sanchez does not satisfy

his burden under the McDonnell Douglas framework and so summary judgment as to

Count III is due to be granted for MEDS.11

Separate from his discrimination claims, Sanchez also brings claims of unlawful

retaliation pursuant to the ADEA and the ADA (Counts V and VII, respectively). The

ADEA prohibits retaliation against any employee who “has opposed any practice made

unlawful by [the ADEA], or because such individual . . . has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or litigation under

[the ADEA].” 29 U.S.C. § 623(d). The ADA prohibits retaliation in identical

circumstances. 42 U.S.C. § 12203(a). MEDS argues it is entitled to summary judgment on

both claims because Sanchez cannot demonstrate he was engaged in statutorily protected

activity or, in the alternative, that any such act was the but-for cause of his termination.

11 Just as the McDonnell Douglas framework is not “the sine qua non for a plaintiff to survive a summary

judgment motion” in an ADEA case, Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.

2011), neither is it so in the ADA context. But Sanchez does not argue that what he produces lays a

convincing mosaic that would allow a jury to infer MEDS possessed a discriminatory intent based on his

disability when it terminated him.

Claims of discriminatory retaliation are analyzed under the same McDonnell

Douglas burden-shifting framework. Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,

919 (11th Cir. 1993) (ADEA); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336

(11th Cir. 1999) (ADA). To demonstrate a prima facie case of discriminatory retaliation,

Sanchez must show that “(1) he engaged in statutorily protected conduct; (2) he was

adversely affected by an employment decision; and (3) there was a causal connection

between” the two. Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir. 2006) (citations

omitted). If he does so, the burden again shifts to MEDS to produce legitimate reasons for

the adverse employment action, which Sanchez must then show to be mere pretext.

Hairston, 9 F.3d at 919. It is again undisputed that Sanchez was adversely affected by an

employment decision—his termination.

Sanchez must first demonstrate that he engaged in statutorily protected conduct.

“Statutorily protected activity includes complaining to superiors of harassment or

discrimination and lodging complaints with the EEOC.” Davis v. Dunn Const. Co., 872

F. Supp. 2d 1291, 1315 (N.D. Ala. 2012) (citing Pipkins v. City of Temple Terrace, 267

F.3d 1197, 1201 (11th Cir. 2001) and Shannon v. Bellsouth Telecomms., Inc., 292 F.3d

712, 715 n.2 (11th Cir. 2002)). Since he asserts he was retaliated against because he

complained to superiors, Sanchez must demonstrate he “subjectively (that is, in good faith)

believed that his employer was engaged in unlawful employment practices, but also that

his belief was objectively reasonable in light of the facts and record presented.” Little v.

United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997) (emphasis in

original).12 The reasonableness of Sanchez’s belief is measured by reference to controlling

substantive law. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008).

Nothing in the record suggests that Sanchez complained of unlawful age or

disability discrimination by MEDS. Though Sanchez did complain generically of

harassment by and hostility from O’Connor, as well as of age discrimination by Mihata,

nothing indicates that Sanchez contemporaneously believed of—or reported—any

harassment at the hands of a MEDS employee.13 Sanchez admitted that he could not recall

a time when anyone employed by MEDS did or said anything harassing to him. Thus, he

has not demonstrated he possessed even the subjective belief that MEDS was acting in a

discriminatory manner.

The record also lacks any indication that such a belief, had Sanchez held it, would

have been objectively reasonable. Sanchez admits that MEDS never said anything about

his age or disability, and that he has no evidence that they ever treated him differently based

on either characteristic. Without any comment or action by MEDS that is the least bit

12 Though Little involved a claim under Title VII, the Eleventh Circuit has imposed the same requirements

in the ADA and ADEA contexts. See Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311–12 (11th Cir.

2002).

13 He also did not indicate in any of his complaints that he believed O’Connor’s comments to be

discriminatory towards his age or disability. Without doing so, such complaints are not protected activity.

See, e.g., Wood v. Cellco P’ship, 2008 WL 220085, at *5 (M.D. Fla. Jan. 24, 2008) (“General complaints

of ‘harassment’ or a ‘hostile environment’ without suggestion that the mistreatment is based on [a

protected characteristic] do not constitute statutorily protected activity.” (citations omitted)).

discriminatory, no rational jury could find a belief that MEDS was discriminating against

Sanchez based on his age or disability to be objectively reasonable.14

All told, Sanchez fails to overcome his burdens to demonstrate unlawful

discrimination or retaliation by MEDS. As such, summary judgment is due to be granted

for MEDS on all claims brought against it.

b. The Air Force’s Motion for Summary Judgment

Sanchez brings similar claims against the Air Force: that he was unlawfully

discriminated against on account of his age (Count II) and disability (Count IV), and was

unlawfully retaliated against, in violation of the ADEA (Count VI) and the Rehabilitation

Act (Count VIII). The Air Force moved for summary judgment, arguing that it is not

Sanchez’s employer and thus has not waived sovereign immunity as to his claims. In the

alternative, the Air Force argues that Sanchez fails to support a prima facie case of

discrimination or retaliation, and so it is entitled to summary judgment on the merits.

To start, the Court first flies into the Air Force’s sovereign immunity thicket.

“Sovereign immunity is jurisdiction in nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994).

The “terms of [the United States’] consent to be sued in any court define that court’s

14 Even if Sanchez could show he engaged in statutorily protected activity, he fails to demonstrate a causal

connection between that activity and his later termination. To demonstrate a causal relationship, Sanchez

must demonstrate “that the [decisionmakers were] aware of the protected conduct, and that the protected

activity and the adverse action were not wholly unrelated.” McCann v. Tillman, 526 F.3d 1370, 1376 (11th

Cir. 2008) (quotations and citation omitted) (alterations in original). While the record indicates that

McCall knew Sanchez was complaining about harassment more broadly, it does not indicate that McCall

knew that Sanchez believed he was subject to unlawful age or disability discrimination by MEDS.

Without that connection, Sanchez cannot establish a causal relationship. But even so, if he could do so,

he also fails to demonstrate that MEDS’ proffered legitimate explanation for his termination was

pretextual, for the same reasons set out above.

jurisdiction to entertain the suit.” Id. (quotations and citation omitted) (alteration in

original). As a branch of the United States military, the Air Force is entitled to sovereign

immunity unless it has been unequivocally waived by statute. “Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from suit.” Id. (citation

omitted). Any such “waiver of the Government’s sovereign immunity will be strictly

construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187,

192 (1996).

The Government has indeed waived sovereign immunity for claims of age15 and

disability16 discrimination and retaliation. However, those waivers only extend to

“employees” of the Government, as defined by each act. The ADEA, unhelpfully, “does

not provide guidance as to the scope of the term ‘employee,’ beyond defining an

‘employee’ as ‘an individual employed by any employer.’” Ashkenazi v. S. Broward Hosp.

Dist., 607 F. App’x 958, 961 (11th Cir. 2015) (quoting 29 U.S.C. § 630(f)). Similarly, the

Rehabilitation Act defines an employee by reference to provisions of the Civil Rights Act

of 1964, which itself defines “employee” in the same way. See 29 U.S.C. § 794a; 42 U.S.C.

§ 2000e(f) (“The term ‘employee’ means an individual employed by an employer.”).

15 The ADEA bars discrimination based on age for all federal employees “who are at least 40 years of

age . . . in military departments [like the Air Force.]” 29 U.S.C. § 633a. The ADEA also permits

retaliation claims by federal employees against the federal government. See Gomez-Perez v. Potter, 553

U.S. 474 (2008).

16 The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., forbids federal agencies from discriminating in

the employment of an otherwise qualified individual with a disability. See 29 U.S.C. § 791; Mullins v.

Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000). It also prohibits employers from retaliating against an

individual who participates in an activity otherwise protected by the statute. 29 U.S.C. § 791(f)

(incorporating the ADA’s anti-retaliation provisions). “The standard for determining liability under the

Rehabilitation Act is the same as that under the ADA.” Sutton v. Lader, 185 F.3d 1203, 1207 n.5 (11th

Cir. 1999).

Neither definition “get[s] us very far.” Llampallas v. Mini-Circuits, Lab, Inc.,

163 F.3d 1236, 1243 (11th Cir. 1998). Instead, when the statute includes “such a ‘nominal

definition’ to define the term ‘employee,’ Congress intended to ‘describe the conventional

master-servant relationship as understood by common-law agency doctrine.’” Peppers v.

Cobb Cnty., 835 F.3d 1289, 1296 (11th Cir. 2016) (quoting Clackamas Gastroenterology

Assocs., P.C. v. Wells, 538 U.S. 440, 444–45 (2003)). “Consistent with the remedial

purposes [of antidiscrimination laws], the federal courts have interpreted the term

‘employer’ liberally.” Peppers, 835 F.3d at 1297 (quoting Virgo v. Riviera Beach Assocs.,

Ltd., 30 F.3d 1350, 1359 (11th Cir. 1994)). The Air Force asserts that Sanchez is not its

employee, and as such, no waiver of sovereign immunity exists as to the claims he raises.

Therefore, it argues, this Court lacks subject matter jurisdiction.

There are two types of attacks on the Court’s subject matter jurisdiction. “Facial

attacks challenge subject matter jurisdiction based on the allegations in the complaint,”

whereas “[f]actual attacks challenge subject matter jurisdiction in fact, irrespective of the

pleadings.” Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003). “In

adjudicating a facial attack, ‘the district court takes the allegations as true in deciding

whether to grant the motion.’” Gardner v. Mutz, 962 F.3d 1329, 1340 (11th Cir. 2020)

(quoting Morrison, 323 F.3d at 925)). “By contrast, when a court confronts a ‘factual’

attack, it needn’t accept the plaintiff’s facts as true; rather, ‘the district court is free to

independently weigh facts’ and make the necessary findings.” Id. (quoting Morrison, 323

F.3d at 925).

The Government here launches a factual attack. The Air Force argues that things

are as they seem: the Air Force did not have a traditional employment contract or

agreement with Sanchez, and it lacked sufficient control over the essential aspects of

Sanchez’s employment to be considered his employer. Sanchez, by contrast, asserts that

appearances are deceiving: though the Air Force was not ostensibly his employer, it

nevertheless exerted enough control over the contours of his job to be considered his “joint

employer” for purposes of discrimination law liability.

Though a defendant may not “employ” a plaintiff in the traditional sense, it may

nevertheless be considered a “joint employer” for purposes of liability under anti-

discrimination statutes. See Virgo, 30 F.3d at 1359–61. An entity is considered a joint

employer if it exercises “sufficient control over the terms and conditions of employment

of the employees who are employed by [another] employer.” Id. at 1360 (quotations and

citation omitted). When deciding whether a defendant is a joint employer, the Court

considers factors like “how much control the alleged employer exerted on the employee,

and . . . whether the alleged employer had the power to hire, fire, or modify the terms and

conditions of the employee’s employment.” Peppers, 835 F.3d at 1297 (quotations and

citations omitted). The Court must, at base, answer the basic question of “who (or which

entity) is in control of the fundamental aspects of the employment relationship that gave

rise to the claim.” Lyes v. City of Riviera Beach, 166 F.3d 1332, 1345 (11th Cir. 1999) (en

banc).

Courts have applied the joint employer doctrine “to the government . . . in the

context of the government’s liability for discrimination against individuals who . . . are

nominally employed only by a government contractor.” Walters v. Winter,

2008 WL 11340071, at *1 (N.D. Fla. Nov. 17, 2008) (collecting cases). However, “[t]he

government has prevailed in most of these cases. . . . [A]n employee of a government

contractor who asserts she was jointly employed by the government faces an uphill battle.”

Id. at *1–2.

The Air Force and Sanchez agree on the broad contours of their employment

relationship. They both agree that the Air Force was not involved in Sanchez’s hiring and

did not set or provide his pay. Beyond that, however, the two disagree on the amount of

control the Air Force retained over Sanchez’s employment. Sanchez argues that the Air

Force had sufficient control over his everyday work life to be considered his joint

employer. He testifies that the Air Force determined his work hours; his job duties; the

standards he should meet; which patients he needed to evaluate; when he should discharge

patients; the language and abbreviations he was to use in his patient charts; which specific

treatments to prescribe, and how often to perform those treatments; when his patients

should arrive at their appointments; conducted his peer and supervisory performance

reviews; and had a direct hand in his termination.

The Air Force differs on the details. It argues that it did not set Sanchez’s daily job

responsibilities, did not decide how long Sanchez would work, or decide whether he (or

any particular therapist) should be retained. In the Air Force’s view, Sanchez “operated on

[his] own schedule[], saw and evaluated patients separately, and drew up patient plans

independently and without much oversight.” (Doc. 54 at 35 (quotations and citation

omitted)).

While the Air Force makes much of the fact that Sanchez’s conception of his

employment relationship is conveyed in his “self-serving statements [from his] 2020

deposition and in his newly attached declaration,” (doc. 64 at 13), the Court is less

concerned. The Air Force misconstrues what is contained within the deposition and

declaration. Rather than nakedly asserting the conclusion that the Air Force is his joint

employer, Sanchez provides factual examples of the Air Force’s considerable control over

his everyday work—from directing which treatments to use to telling him how to fill out

his patient charts. The declaration and the deposition themselves are the evidence upon

which Sanchez relies. Obviously, Sanchez’s “sworn statements are self-serving, but that

alone does not permit [the Court] to disregard them at the summary judgment stage.”

Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013). “A litigant’s self-

serving statements based on personal knowledge or observation can defeat summary

judgment.” United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (en banc). What the

Air Force wants is corroboration for Sanchez’s factual statements—but at this stage,

Sanchez is not required to provide what the Air Force seeks. See Stein, 881 F.3d at 855

(“We hold that an affidavit . . . may create an issue of material fact and preclude summary

judgment even if it is self-serving and uncorroborated.” (emphasis added)).

Thus, cast in the light most favorable to Sanchez, there remains a genuine dispute

of fact as to the extent of the Air Force’s control over Sanchez, and by extension, as to

Sanchez’s employment status. In normal circumstances, since this factual dispute goes to

the Court’s jurisdiction, the Court would be “‘free to independently weigh facts’ and make

the necessary findings” to satisfy itself of its jurisdiction. Gardner, 962 F.3d at 1340

(quoting Morrison, 323 F.3d at 925)). But the Court may not do so “[i]f the facts necessary

to sustain jurisdiction . . . implicate the merits of the plaintiff’s cause of action,” Garcia v.

Copenhaven, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997). If those

jurisdictional facts implicate the merits of the plaintiff’s action, the basis for the Court’s

jurisdiction is said to be “intertwined” with the merits, such as when “a statute provides the

basis for both the subject matter jurisdiction of the federal court and the plaintiff’s

substantive claim for relief.” Morrison, 323 F.3d at 926 (quotations and citation omitted).

In that unique instance, “[t]he proper course of action . . . is to find that jurisdiction exists

and deal with the objection as a direct attack on the merits of the plaintiff’s case.” Gardner

v. Mutz, 962 F.3d 1329, 1340 (11th Cir. 2020) (quoting Morrison, 323 F.3d at 925)

(alterations in original). “Judicial economy is best promoted when the existence of a

federal right is directly reached, and where no claim is found to exist, the case is dismissed

on the merits.” Williamson v. Tucker, 645 F.2d 404, 415–16 (5th Cir. 1981), cert. denied,

454 U.S. 897 (1981).17

That is precisely the situation the Court faces here. The Air Force’s argument for

sovereign immunity, and against this Court’s jurisdiction, is more complicated than

whether a waiver of sovereign immunity itself exists by statute—a waiver unequivocally

does exist for anti-discrimination claims by federal employees. Rather, the Air Force

argues that a waiver does not exist here because Sanchez cannot demonstrate a component

17 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of

business on September 30, 1981.

of his claim on the merits: his status as an employee. See, e.g., Kaiser v. Trofholz Techs.,

Inc., 935 F. Supp. 2d 1286, 1290–92 (M.D. Ala. 2013) (finding that a defendant’s “status

as [the plaintiff’s] employer is a nonjurisdictional element of [the plaintiff’s] substantive

cause of action”); Garcia, 104 F.3d at 1267 (holding that a plaintiff’s status as an

employee—and conversely, the defendant’s as an employer—is “an element of an ADEA

claim”); cf. Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006) (holding that whether an

entity has enough employees to meet the statutory definition of “employer” under Title VII

is “an element of a plaintiff’s claim for relief, not a jurisdictional issue”). The Air Force

attacks this Court’s jurisdiction on factual grounds, the basis of which both defines the

scope of the federal government’s waiver of sovereign immunity and comprises an element

of Sanchez’s claim.

Granted, this case presents a slightly different procedural posture than Garcia (or

the similar cases Morrison and Gardner). Whereas in those cases, the trial court had

dismissed the case pursuant to a Rule 12(b)(1) motion, and in doing so, resolved disputed

questions of fact that it should not have done under the Rule 12(b)(6) or Rule 56 standards

(had they been properly applied as required), here, the Court is already faced with a Rule 56

motion for summary judgment. Accordingly, the question is slightly different: the Court

must decide whether, after treating the Air Force’s attack on this Court’s jurisdiction as

one going to the merits of Sanchez’s claim such that the Court is not allowed to resolve

disputes of fact, the Court is permitted to address other merits questions before resolving

the dispute that would go to the Court’s own jurisdiction.

The Eleventh Circuit does not appear to have answered that question directly. It has

indicated on at least one occasion that a question of sovereign immunity, at least in the

Eleventh Amendment context, “must be resolved before a court may address the merits of

the underlying claims,” Seaborn v. Fla., Dep’t of Corr., 143 F.3d 1405, 1407 (11th Cir.

1998) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–103 (1998)).

However, that case emerged from a very different procedural posture in which the appellee

Florida asserted for the first time on appeal that it was entitled to Eleventh Amendment

immunity from the appellants’ claims of disability discrimination. Id. The court was not

faced with (and unsurprisingly, did not address) the question the Court addresses here.

Other circuits have held that merits questions outside of sovereign immunity

considerations can be addressed prior to resolution of immunity. See, e.g., In re Sealed

Case No. 99-3091, 192 F.3d 995, 1001–02 (D.C. Cir. 1999) (holding that since federal

sovereign immunity is “a less than pure jurisdictional question,” the court need not resolve

it “before the merits”); Scott v. Potter, 182 F. App’x 521, 523 n.1 (6th Cir. 2006)

(“Although the sovereign-immunity question is a jurisdictional one, we have discretion to

address first the merits of the underlying claim.”). But see Mowrer v. U.S. Dep’t of Transp.,

14 F.4th 723, 733–43 (D.C. Cir. 2021) (Katsas, J., concurring) (arguing forcefully that In

re Sealed Case was wrongly decided, both as a matter of circuit law as well as under

applicable Supreme Court precedents, and collecting cases of the opposite approach).

Given that the Eleventh Circuit has not yet weighed in on whether, after applying

the Garcia principle and treating the jurisdictional attack as one on the merits, the Court

must address that merits question first, the Court assumes it need not do so. Though the

Court is sensitive that “the core principles of a limited federal judiciary and respect for

sovereign entities’ immunity from unconsented-to suits clearly cut against proceeding

when jurisdiction remains uncertain,” Douglas v. United States, 814 F.3d 1268, 1281 (11th

Cir. 2016) (Tjoflat, J., concurring), the burdens that motivate that idea are not present here.

Discovery has already been conducted and the parties have already spent considerable time

investigating and arguing the merits of Sanchez’s claims. The Government is not further

burdened by the Court following Garcia, proceeding to the merits, and then resolving the

merits in the order it chooses. Accordingly, the Court finds that because the Air Force’s

jurisdictional attack in intertwined with the merits of Sanchez’s underlying claims, it is

proper to assume that jurisdiction exists and proceed to whichever merits question it so

chooses. 18

And on the merits, Sanchez’s claims fail. To start, Sanchez’s claims against the Air

Force rest on the same conduct as his claims against MEDS. O’Connor’s and Mihata’s

statements remain insufficiently direct to constitute direct evidence of discrimination or

retaliation, and so once again, Sanchez must establish his claims of discrimination and

retaliation through reliance on the McDonnell Douglas burden-shifting framework.

On his ADEA discrimination claim, Sanchez fails to demonstrate a prima facie case

of age discrimination. Though he is over the age of forty and was subject to an adverse

18 The Court could, consistent with Garcia and Morrison, frame what it is doing in a different way: since

the question of whether the Air Force employed Sanchez is inextricable from the merits of the underlying

claim, and because Sanchez’s claims fail on the merits for other reasons, the factual dispute over how

much control the Air Force has over Sanchez is immaterial—Sanchez loses on the merits regardless. See

Redwing Carriers, Inc., 94 F.3d at 1496 (“An issue is ‘material’ if it might affect the outcome of the case

under the governing law.” (quoting Anderson, 477 U.S. at 248)).

employment action,19 he does not demonstrate that he was replaced by someone outside

the protected class (or demonstrate that anyone outside that class was treated systematically

better than he was). See Liebman, 808 F.3d at 1298 (explaining that to establish a prima

facie case of age discrimination, a plaintiff must demonstrate “a substantially younger

person filled the position from which he was discharged”). Just as it did with respect to

MEDS, so too here does the failure to demonstrate his prima facie case doom Sanchez’s

ADEA discrimination claim, and so summary judgment is due to be granted to the Air

Force as to Count II.

Sanchez’s disability discrimination claim falls the same way. To succeed on a

discrimination claim under the Rehabilitation Act, Sanchez must show that he was fired

“by reason of” his disability. Kornblau, 86 F.3d at 193. Inherent in that is that Sanchez’s

employer knew of his disability prior to his firing. See Williamson v. Clarke Cnty. Dep’t of

Human Res., 834 F. Supp. 2d 1310, 1322–23 (S.D. Ala. 2011) (“It is well established in

this Circuit that a decision-maker who lacks actual knowledge of an employee’s disability

cannot fire the employee because of that disability.” (quotations and citation omitted)); see

also Morisky v. Broward Cnty., 80 F.3d 445, 448–49 (11th Cir. 1996) (affirming a grant of

summary judgment when the plaintiff produced no evidence that the defendant knew of the

plaintiff’s disability); Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995) (“If

[an employer] does not know of the disability, the employer is firing the employee ‘because

of’ some other reason.”).

19 While the Air Force contests whether Sanchez was subject to an adverse employment action by the Air

Force, the Court assumes without deciding that he was.

Even if Sanchez can demonstrate that he is disabled, which the Court again assumes

without deciding, he does not demonstrate that anyone employed at the Air Force knew

about his disability. He does not show that he ever “informed any of the employees of [the

Air Force] of [his] specific disability,” Morisky, 80 F.3d at 448, or that his disability was

so plain as to be “obvious to the casual observer,” Rogers v. CH2M Hill, Inc., 18 F. Supp.

2d 1328, 1334 (M.D. Ala. 1998).

Instead, all Sanchez provides are vague assertions he made to O’Connor in response

to her teasing, in which he said he “ha[s] a bad shoulder” and “bad back,” (Doc. 57-1 at

19). In context, however, it is difficult to see how these comments lead to the inference

Sanchez implicitly asserts.20 During his time at Maxwell, Sanchez was an award-winning

triathlete, and worked out in the gym almost daily. Sanchez does not point to any other

occasion in which he brought up his disability with the Air Force, nor point to any other

way the disability impacted his work at Maxwell. Mere conclusory assertions by Sanchez

that he has a bad back or shoulder, divorced from any medical explanation or other physical

manifestation, are insufficient to make the Air Force aware of those disabilities. See

Morisky, 80 F.3d at 448 (“Vague or conclusory statements revealing an unspecified

incapacity are not sufficient to put an employer on notice of its obligations under the

ADA.”). Without knowledge that Sanchez was disabled, the Air Force could not

20 Sanchez does not explicitly address in his brief the Air Force’s argument that it lacked knowledge of his

disability.

discriminate against him on that basis, and so summary judgment is due to be granted to

the Air Force as to Count IV.21

Sanchez’s disability retaliation claim against the Air Force also fails. Just as with

his claim against MEDS, Sanchez does not demonstrate that he participated in statutorily

protected activity. Sanchez produces no evidence that, prior to his termination, he held

even a subjective belief that the Air Force was engaging in unlawful disability

discrimination. Sanchez points to no email, complaint, or conversation prior to his

termination in which he complained to the Air Force that he believed O’Connor’s

comments on his weightlifting constituted unlawful disability discrimination. While it is

true that Sanchez repeatedly complained of discrimination and harassment, he failed to

specify or imply any unlawful basis that he believed such behavior was based on. That

Sanchez may have considered the comments rude, hurtful, or “discrimination” in a broad

sense is not the same as believing that they were unlawfully discriminatory because of his

disability. Only the latter constitutes protected activity. See, e.g., Wood, 2008 WL 220085,

at *5. Without some indication that he complained of disability discrimination to his Air

Force supervisors, his claim of retaliation based on such a complaint must necessarily fail.

Sanchez’s age retaliation claim fails for a different reason. To start, the Court

assumes without finding that Sanchez has satisfied his prima facie case of ADEA

retaliation. But the Air Force points to the same legitimate reasons for Sanchez’s

21 Alternatively, if Sanchez were able to demonstrate that the Air Force knew of his disability, he

nevertheless fails to demonstrate that its proffered justification for his termination was merely pretext to

discrimination (for the same reasons discussed below concerning his ADEA retaliation claim).

termination as MEDS did: that he was fired after failing to take responsibility for or

propose behavioral adjustments after numerous patient complaints. The burden thus shifts

back to Sanchez to rebut the Air Force’s reasons as merely pretext for age discrimination.

As before, to demonstrate that the Air Force’s reasons were pretextual and create a

question of fact as to its intention in terminating Sanchez, he must show “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the [Air Force’s]

proffered legitimate reasons for its action that a reasonable fact finder could find them

unworthy of credence.” Combs, 106 F.3d at 1538 (quotations and citation omitted). A

reason is not pretext “unless it is shown both that the reason was false, and that

discrimination [or retaliation] was the real reason.” Brooks, 446 F.3d at 1163 (quotations

and citation omitted) (emphasis in original).

Sanchez does not cast sufficient doubt upon the Air Force’s proffered justifications

to survive summary judgment. As mentioned above, Sanchez produces no evidence (or

even alleges) that the patient complaints upon which the Air Force relied were false or

manufactured, or that he did not commit the infractions complained of. While Sanchez did

testify that O’Connor herself pushed patients to file complaints against him, nothing

indicates those complaints were fabricated, or that O’Connor pushed patients because of

Sanchez’s age. Instead, Sanchez admits that the complaints were submitted by actual

patients and were concerning enough to be investigated by any employer.

Sanchez again points to his many positive reviews and to the subjective nature of

the patient complaints he received. It may well be true that he received more positive

reviews than the few, subjectively negative reviews that the Air Force relied on. But as

explained, this Court is “not in the business of adjudging whether employment decisions

are prudent or fair. Instead, [its] sole concern is whether unlawful discriminatory [or

retaliatory] animus motivates a challenged employment decision.” Damon, 196 F.3d

at 1361. The Air Force can fire Sanchez “for a good reason, a bad reason, a reason based

on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory

reason.” Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (quotations

and citation omitted). Sanchez does not rebut the Air Force’s proffered reason so much as

argue its wisdom and fairness. That is not enough—Sanchez has not established a question

of fact as to the Air Force’s motive. Thus, failing to meet his burden under McDonnell

Douglas, his claim of retaliation in violation of the ADEA fails.

All told, Sanchez fails to satisfy his burden of proof or demonstrate a genuine

question of material fact on any claim asserted against MEDS or the Air Force. Thus, the

Defendants are entitled to summary judgment on all claims.

V. Conclusion

Accordingly, and for good cause, it is

ORDERED that MEDS’ motion for summary judgment as to Counts I, III, V, and

VII (doc. 55) is GRANTED. It is further

ORDERED that the Air Force’s motion for summary judgment as to Counts II, IV,

VI, and VIII (doc. 53) is GRANTED.

A separate final judgment will enter.

Done this 31st day of March, 2022.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE