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Bauer v. Holder

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

June 10, 2014

JAY J. BAUER, Plaintiff,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, Defendant

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[Copyrighted Material Omitted]

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For Jay J. Bauer, Plaintiff: Craig Crandall Reilly, LEAD ATTORNEY, Law Office of Craig C. Reilly, Alexandria, VA.

For Eric H. Holder, Jr., Attorney General, Department of Justice, Defendant: Lauren A. Wetzler, R. Joseph Sher, LEAD ATTORNEYS, United States Attorney's Office, Alexandria, VA.

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MEMORANDUM OPINION

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

At issue on cross-motions for summary judgment in this Title VII [1] case is whether the Federal Bureau of Investigation's (" FBI" ) gender-normed physical fitness test (" PFT" ) that all FBI New Agent Trainees (" NATs" ) must pass constitutes impermissible disparate treatment under Title VII. As a NAT, plaintiff failed to perform the 30 push-ups required for male NATs, and argues that this requirement, given that female NATs are required to perform only 14 pushups, discriminates against him on the basis of sex and thus violates Title VII. Defendant argues that the PFT does not involve impermissible discrimination because the gender-normed standards are based on innate physiological differences between males and females and these standards impose no greater burden on males than on females.

The parties have extensively briefed and argued the various questions presented and the matter is now ripe for resolution.

I.[2]

A. The Parties

Plaintiff Jay Bauer is a 40-year-old [3] male who currently resides in Mount Prospect, Illinois with his wife and two children. Compl. ¶ ¶ 2-3. Plaintiff received his Bachelor of Science, Master's, and Ph.D. degrees from Northwestern University in 1996, 2001, and 2004, respectively. Plaintiff first decided that he wanted to become an FBI Special Agent after the tragic events of September 11, 2001. Plaintiff now serves as an FBI Intelligence

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Analyst in the FBI's Chicago Division, a position he accepted after failing to pass the PFT following 22 weeks in the FBI's New Agent Training Program (" NATP" ).

Defendant Eric Holder, Jr. is the Attorney General at the U.S. Department of Justice. The FBI is a bureau of the U.S. Department of Justice, and thus the Attorney General is the proper defendant in a Title VII action against the FBI as the head of the relevant department. See 42 U.S.C. § 2000e-16(c).

B. The PFT

The NATP is designed (i) to ensure that, upon graduation, a NAT has " attained the necessary proficiencies in specialized knowledge, skills, and abilities needed to effectively perform the duties of a[n] FBI [Special Agent]" and (ii) " to assess each NAT's suitability for the [Special Agent] position as measured by the NAT's level of conscientiousness, cooperativeness, emotional maturity, initiative, integrity and judgment." Stip. ¶ 12 (emphasis in original). To complete the NATP successfully, NATs must meet designated requirements in each of four categories: (1) academics, (2) firearms training, (3) physical/defensive tactics training, and (4) practical applications/skills training. The Physical Training program and the PFT are components of the physical/defensive tactics training category. A document distributed to all NATs titled " Rules, Regulations and Requirements at the FBI Academy for New Agent Trainees" (" Requirements Document" ) includes the requirements and standards for each of these four categories and provides that failure to demonstrate proficiency in any one of the four categories could result in dismissal from the NATP.

The Physical Training program for NATs at the FBI Academy is important for at least two reasons: (i) " a basic level of fitness and conditioning is essential for a NAT to perform at his/her best in all aspects of training and to successfully complete the entire fast-paced training program without serious physical injury and undue mental stress," and (ii) " a NAT's level of fitness serves as a foundation for his/her ability to effectively apply principles and non-deadly force alternatives being taught in the [defensive tactics] program." Stip. ¶ 25. Successful completion of an Academy-administered PFT, considered a " key component" of the Physical Training program, is an FBI Academy graduation requirement. See Stip. ¶ 26. The PFT contains four individual tests: (1) one-minute sit-ups, (2) 300 meter run, (3) push-ups to maximum, and (4) 1.5 mile run. Each NAT must achieve a minimum cumulative score of twelve points with at least one point in each of the four events. Each PFT event is scored on a ten-point scale, for a maximum overall score of 40 points. One point is awarded for achieving the minimum standard in an event, and three points are awarded for reaching the mean. To achieve one point in each of the four events, NATs must meet the following minimum standards by sex:

Event

Male

Female

Sit-ups

38

35

300 meter run

52.4 sec

64.9 sec

Push-ups

30

14

1.5 mile run

12:42 min

13:59 min

The PFT was implemented in 2004 as a mandatory physical fitness test for all NATs. The process by which the FBI selected

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the PFT events and minimum passing standards is recorded in two reports, both authored by Amy D. Grubb, Ph.D., an Industrial/Organizational Psychologist employed by the FBI:[4] (i) a 2003 study titled " Validation of a Physical Training Test: Report of Standards, Findings, and Recommendations" (" 2003 Grubb Report" )[5] and (ii) a 2005 study titled " The Physical Fitness Test: An Evaluation of the Standards and Report of Validation Evidence" (" 2005 Grubb Report" ).[6] Minimum passing scores for the PFT were developed through a pilot study of 324 NATs (260 male and 64 female), in which the FBI set minimum passing scores for each event at one standard deviation below the mean performance for each sex.[7] Stip. ¶ 126, 131; 2003 Grubb Report at 6. Defendant chose to set gender-specific minimum standard and mean scores in order to take account of the innate physiological differences that exist, on average, between males and females. 2003 Grubb Report. In the case of the push-up test, this process resulted in the minimum standard score being set at the 15.7th percentile for males and at the 15.9th percentile for females. Id. at 12.

The record reflects that the PFT is the last mandatory physical fitness test that FBI Special Agents must pass during their FBI careers. There is no required physical fitness test for incumbent FBI Special Agents, despite the fact that the FBI's own validation study suggested that the FBI consider adopting a mandatory physical fitness test for incumbent Special Agents.[8] The record also reflects that the FBI encourages incumbent Special Agents to take a voluntary fitness test using norms for persons in the 30-39 year age group published by the Cooper Institute--24 push-ups for men and 11 for women at the 40th percentile--as suggested minimum fitness goals.

C. Plaintiff's Performance on the PFT

By letter dated February 24, 2009, the FBI offered plaintiff an appointment as a Special Agent and required plaintiff, if he

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accepted the offer, to report to the FBI Academy in Quantico, Virginia on March 1, 2009. Thereafter, on the appointed date, plaintiff, then age 35,[9] entered on duty with the FBI NAT Class 09-08 at the FBI Academy to begin the NATP. When he started the NATP on March 1, 2009, plaintiff received the Requirements Document and acknowledged, in writing, that he understood and agreed to the document's terms.

Plaintiff took the PFT a total of seven times, twice at the at the FBI's Milwaukee Field Office prior to starting the NATP and five times during the NAPT at the FBI Academy in Quantico. He attained satisfactory passing scores in each component of the NATP other than the PFT,[10] and his NAT class selected him as " class leader" and " class spokesperson" to represent the class at graduation.[11] Plaintiff passed the push-up test the second time he took the PFT at the Milwaukee Field Office, but failed it every other time. The following chart records each time plaintiff took the PFT and his score on each occasion:

Date

Location

Sit-ups

Points

300 meter

Points

10/31/2008

FBI Milwaukee Field Office

48

5

43 sec

7

1/12/2009

FBI Milwaukee Field Office

51

6

44 sec

6

Week 1 NATP

FBI Academy Quantico

40

2

42.6 sec

8

Week 7 NATP

FBI Academy Quantico

47

4

43.4 sec

7

Week 14 NATP

FBI Academy Quantico

50

6

43.7 sec

7

Week 18 NATP

FBI Academy Quantico

51

6

43.8 sec

7

Week 22 NATP

FBI Academy Quantico

49

5

44.1 sec

6

Date

Push-ups

Points

1.5 mile

Points

Total Points

10/31/2008

25

0

10:50 min

4

16

1/12/2009

32

1

11:25 min

3

16

Week 1 NATP

26

0

10:49 min

4

14

Week 7 NATP

25

0

10:24 min

5

16

Week 14 NATP

28

0

10:45 min

4

17

Week 18 NATP

27

0

11:09 min

4

17

Week 22 NATP

29

0

10:57 min

4

15

Females in plaintiff's NAT Class 09-08 passed the PFT and became Special Agents with the following scores:

NAT

Sit-ups

Points

300 meter

Points

Push-ups

Points

1.5 mile

Points

Total Points

Female A [12]

39

2

54.3 sec

5

16

1

10:49 min

4

14

Female B

42

3

54.3 sec

5

24

3

12:51 min

3

14

Female C

46

4

54.7 sec

5

19

2

12:26 min

4

15

Female D

41

3

55.2 sec

5

15

1

11:50 min

5

14

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On July 30, 2009, during week 22 of plaintiff's NATP, plaintiff was able to complete only 29 push-ups in the PFT, rather than the required 30. Immediately following this event, FBI personnel Melinda Casey, Gerald Jackson, and Jason VanGoor met with plaintiff and informed him that he had three " options" : (i) to resign as a Special Agent and preserve the possibility of working as an FBI Intelligence Analyst in Chicago; (ii) to resign and forgo the possibility of any future position with the FBI; or (iii) to be terminated from employment with the FBI. Plaintiff was required, then and there, to choose one of the three options. He chose the first option, and FBI personnel provided him with a template resignation letter addressed to then-FBI Director Robert Mueller that gave plaintiff precisely what he must say to resign from the NATP while preserving the possibility of being considered in the future for an FBI Intelligence Analyst position. Plaintiff, as directed, then and there handwrote and signed a resignation memorandum addressed to Director Mueller using the provided template. Plaintiff's decision to choose that option was, in his view, the only way to mitigate damages at that time in terms of being able to provide for his family. After resigning, plaintiff left Quantico and drove to Chicago, where his wife and two children were then living. Two weeks later, the FBI offered plaintiff an Intelligence Analyst position, and he accepted.

D. The Special Agent and Intelligence Analyst Positions

There are two " career paths" listed on the FBI's external website: " Special Agent" and " Professional Staff." The Intelligence Analyst position is considered a " support" position within the FBI, and appears under the " Professional Staff" designation, alongside numerous other positions including lawyers in the Office of General Counsel, scientists and engineers specializing in fields ranging from chemistry to cryptography, experts in communications and surveillance, and linguists.

FBI Special Agents are responsible for conducting investigations and enforcing federal law. Specifically, FBI Special Agents:

may work on matters including terrorism, foreign counterintelligence, cybercrime, organized crime, white collar crime, public corruption, civil rights violations, financial crime, bribery, bank robbery, extortion, kidnapping, air piracy, interstate criminal activity, fugitive and drug trafficking matters, and other violations of federal statutes.

Stip. ΒΆ 48. As a general matter, male and female Special Agents are expected to perform the same physical tasks at ...


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