Bauer v. Sessions

254 F.Supp.3d 809

Jay J. BAUER, Plaintiff,

v.Jefferson B. SESSIONS, III, Defendant.

Case No. 1:13-cv-93.

United States District Court, E.D. Virginia, Alexandria Division.

Signed May 25, 2017

Craig Crandall Reilly, Law Office of Craig C. Reilly, Alexandria, VA, for Plaintiff.

Dennis Carl Barghaan, Jr., Lauren A. Wetzler, R. Joseph Sher, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

At issue on remand in this sex discrimination case are the parties' cross motions for summary judgment. The dispositive question is whether the gender-normed physical fitness test ("PFT") implemented by the Federal Bureau of Investigation for new agent trainees ("NATs") constituted unlawful disparate treatment on the basis of sex¹ by imposing a significantly greater burden of compliance on men than on women. In other words, the question is whether the FBI's gender-normed fitness standards required men and women to demonstrate the same level of physical fitness.

Plaintiff, an aspiring FBI special agent, failed during his training to perform the 30 pushups required of male NATs. Thereafter, on April 2, 2012, plaintiff filed suit in the United States District Court for the Northern District of Illinois against the Attorney General of the United States.² The complaint alleges that the 30–pushup requirement constitutes unlawful sex discrimination against men because female NATs need only complete 14 pushups. Thus, plaintiff brought claims under two provisions of Title VII, namely, 42 U.S.C. § 2000e–2(a)(1),³ which generally prohibits employment discrimination by private employers, and 42 U.S.C. § 2000e–2(l), which specifically prohibits employers from using discriminatory standards on employment-related tests. In response to plaintiff's allegations, defendant argued that the FBI's gender-normed standards are not discriminatory because they require the same fitness level of all NATs, as evidenced by the fact that men and women pass the PFT, including the pushup requirement, at the same rate. The matter was subsequently transferred to this district, and in November 2013 the parties filed cross motions for summary judgment.

After extensive briefing and argument, a memorandum opinion and order issued on June 10, 2014, granting plaintiff's summary judgment motion and denying defendant's. The opinion noted that although "it is undeniable that men and women, as distinct groups, have physiological differences," and that gender-normed standards may sometimes be appropriate or necessary, "physiological differences cannot support the differential treatment reflected in the FBI's PFT absent a valid [bona fide occupational qualification], which is lacking here." Bauer v. Holder , 25 F.Supp.3d 842, 865 (E.D. Va. 2014) (" Bauer I "). That opinion relied on the Supreme Court's "simple test" espoused in City of Los Angeles, Department of Water & Power v. Manhart , 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). The "simple test" recognizes unlawful sex discrimination where "the evidence shows treatment of a person in a manner which but for that person's sex would be different." Manhart , 435 U.S. at 711, 98 S.Ct. 1370 (quotation marks omitted). On appeal, the Fourth Circuit reversed and remanded. See Bauer v. Lynch , 812 F.3d 340 (4th Cir. 2016) (" Bauer II "). Recognizing that this case involves a "novel issue," the Fourth Circuit rejected Manhart 's "simple test" in this context and held that "an employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each." Id. at 347, 351.

Plaintiff subsequently sought a writ of certiorari , but that petition was denied. See 137 S.Ct. 372 (2016). On remand, the parties once again filed cross motions for summary judgment. As the matter has been fully briefed and argued orally, it is now ripe for disposition.

I.

Most of the facts in this case are undisputed and have already been recounted in two published opinions. See Bauer I , 25 F.Supp.3d at 845–50 ; Bauer II , 812 F.3d at 342–47. The following are the undisputed material facts pertinent to the parties' current summary judgment motions.

In short, plaintiff, now an FBI intelligence analyst, originally sought employment with the Bureau as a special agent. In 2009, plaintiff successfully became a NAT at the FBI Academy in Quantico, Virginia. The FBI, in training the recruits, required all NATs to show proficiency in four categories: (1) academics, (2) firearms training, (3) practical applications/skills training, and (4) physical/defensive tactics training. Moreover, the Academy distributed to all NATs a document titled "Rules, Regulations and Requirements at the FBI Academy for New Agent Trainees," which included the requirements and standards for each of these four categories and provided that failure to demonstrate proficiency in any one of the four categories could result in a NAT's dismissal. Plaintiff's sex discrimination claim focuses on the last category, physical training.

The FBI's physical training program included, among other things, the PFT, which comprised four events: (1) one-minute sit-ups, (2) a 300 meter run, (3) a 1.5 mile-run, and (4) pushups to exhaustion. Specifically, the Bureau required all NATs to achieve a minimum cumulative score of twelve points with at least one point in each of the four events. Further, each PFT event was scored on a ten-point scale, for a maximum overall score of 40 points. A NAT received one point for achieving the minimum standard in an event, and three points for reaching the mean. Each standard was gender-normed. As relevant here, the FBI's gender-normed minimum standards required men to complete at least 30 pushups, but required women to complete only 14. During his 22–week training program at the Academy, plaintiff attempted the PFT on five occasions. He failed each time. In fact, on each attempt plaintiff scored over 12 cumulative points, but scored none in the pushup event—although he surpassed the minimum number required of women, plaintiff could not perform the 30 pushups required of men. On his fifth and final try, plaintiff missed the males' mark by a single pushup.⁴

With the exception of his failure to perform enough pushups, plaintiff's performance at the Academy seems to have been largely unassailable. After all, his fellow NATs elected him as their graduation speaker. Yet, plaintiff's inability to surpass the minimum pushup quota for men prevented him from obtaining a position as a special agent. Plaintiff then sued, alleging sex discrimination in light of the different pushup standards imposed on men and women.

Plaintiff, of course, was by no means the first NAT to take the PFT. Rather, the Bureau had implemented the PFT as a mandatory test for all NATs about five years prior, following a 2003 Pilot Study comprising 324 individuals—260 men and 64 women—who completed the PFT during their first week at the FBI Academy.⁵

The FBI, seeking to normalize its physical fitness standards to account for physiological differences between the sexes, used the 2003 Pilot Study to establish gender-specific minimum scores. Specifically, the FBI calculated the mean performance for each sex in the Pilot Study and then set the minimum passing scores for each PFT event at one standard deviation below those mean scores. For the pushup event, specifically, the FBI set the minimum score at approximately the 15.7 ^th percentile for males and at the 15.9 ^th percentile for females who had participated in the Pilot Study.⁶ In other words, almost exactly 84% of men in the study had completed at least 30 pushups, and almost exactly 84% of the women had completed at least 14. Thus, the Bureau decided to make 30 and 14 pushups the minimum scores for male and female NATs, respectively. Furthermore, these differences in percentiles and pass rates between the sexes were not statistically significant, and in 2004 the Bureau adopted the PFT as a graduation requirement for NATs.

Thereafter, in 2005, the FBI performed a follow up study on the PFT and confirmed that male and female NATs passed the test at equivalent rates. In fact, in 2004, both males and females passed the PFT at higher rates than in previous years. Specifically, 90.2% of male NATs and 89.5% of female NATs had passed the PFT by week 7 of their training programs. This difference in pass rates between men and women was statistically insignificant. See 2005 Grubb Report. Subsequent years and NAT classes have confirmed these data, too. Among the more than 6,000 NATs who have taken the PFT from 2004 to 2012, approximately 99% of both men and women passed. Once again, there is no statistically significant difference in the pass rates between the sexes.

As noted in Bauer I , it is undisputed that the 2005 Grubb Report looked at various alternative methods of scoring the pushup event, including the 30–39 age group norms published by the Cooper Institute for Aerobic Research ("Cooper Institute"), which norms derive from the largest known set of fitness data in the United States. The FBI, however, developed its own minimum passing standards because the Cooper Institute data reflect fitness norms for the general population, not the law enforcement population, which typically has a higher level of fitness than does the general public. As of 2009, the Cooper Institute norms for the 30–39 age group at the 60 ^th percentile were 30 pushups for men and 15 pushups for women—which differ from the PFT by one pushup for women. Of course, the Cooper Institute norms also differ from the PFT in that the Cooper Institute tallies pushups completed in one minute, whereas the PFT tests pushups to exhaustion without a time limit. It is also undisputed that the average NAT is approximately 30 years old, and that...