Court: District Court, E.D. Virginia; May 25, 2017; Federal District Court
The memorandum opinion addresses cross motions for summary judgment in a sex discrimination case concerning the FBI's gender-normed physical fitness test (PFT) for new agent trainees (NATs). The primary issue is whether the PFT, which requires male NATs to complete 30 pushups while female NATs must complete only 14, constitutes unlawful disparate treatment based on sex. The plaintiff, who did not meet the male standard during training, filed suit alleging that this requirement discriminates against men under Title VII provisions. The FBI contended that the standards were not discriminatory since both genders passed the PFT at the same rate.
In June 2014, the court granted the plaintiff's motion for summary judgment, asserting that physiological differences cannot justify the different requirements without a valid occupational qualification, referencing the Supreme Court's "simple test" from Manhart, which identifies unlawful discrimination when treatment differs based on sex. However, the Fourth Circuit reversed this decision on appeal, stating that Title VII does not prohibit the use of different physical fitness standards that account for physiological differences, provided both men and women face equal compliance burdens. The plaintiff's subsequent petition for certiorari was denied. The case is now ready for a decision on the parties’ renewed summary judgment motions, with most facts already established in previous opinions. The plaintiff, currently an FBI intelligence analyst, originally sought to become a special agent and became a NAT in 2009.
The FBI mandates proficiency in four categories for New Agent Trainees (NATs): academics, firearms training, practical applications/skills training, and physical/defensive tactics training. A document titled 'Rules, Regulations and Requirements at the FBI Academy for New Agent Trainees' outlines the standards, stating that failure in any category may lead to dismissal. The plaintiff's sex discrimination claim pertains to the physical training component, specifically the Physical Fitness Test (PFT), which includes one-minute sit-ups, a 300-meter run, a 1.5-mile run, and pushups to exhaustion. NATs must achieve a minimum cumulative score of twelve points across these events, with a scoring system that awards points based on performance relative to gender-normed standards. For pushups, men must complete at least 30, while women must complete 14.
The plaintiff attempted the PFT five times, scoring over 12 cumulative points but failing to meet the pushup requirement for men, missing the mark by one pushup on his final attempt. Despite his overall strong performance, this failure resulted in his inability to secure a position as a special agent. The plaintiff alleges sex discrimination due to the differing pushup standards. The FBI implemented the gender-specific standards based on a 2003 Pilot Study involving 324 participants, which established the minimum passing scores at one standard deviation below the mean performance for each sex. The study indicated that approximately 84% of men performed at least 30 pushups, while 84% of women completed at least 14. The Bureau found the differences in pass rates between genders statistically insignificant, and subsequent studies confirmed equivalent passing rates for male and female NATs, with 90.2% of males and 89.5% of females passing the PFT by the seventh week of training.
Over 6,000 National Academy of Training (NAT) participants from 2004 to 2012 exhibited a passing rate of approximately 99% in the Physical Fitness Test (PFT), with no significant gender differences noted. The 2005 Grubb Report evaluated various pushup scoring methods, including norms from the Cooper Institute for Aerobic Research, which are based on the general population and not tailored to law enforcement's higher fitness standards. For the 30-39 age group, the Cooper Institute's 60th percentile indicated 30 pushups for men and 15 for women, differing from the PFT criteria, which counts pushups to exhaustion without a time limit. It is acknowledged that the average NAT is about 30 years old, and comparisons were made to the less stringent 30-39 norms rather than the 20-29 norms.
The courts require that cross motions for summary judgment be assessed separately based on whether either party is entitled to judgment as a matter of law. The movant has the burden to demonstrate an absence of genuine material fact disputes, while the opposing party must present specific facts to counter this. All facts must be viewed in favor of the non-moving party.
The legal issue on remand focuses on whether the gender-normed fitness standards disproportionately burdened male plaintiffs compared to female counterparts. The Fourth Circuit concluded that differing physical fitness standards based on physiological differences do not violate Title VII as long as they impose equal compliance burdens on both sexes. This approach was supported by precedents from the Powell v. Reno case and the EEOC decision in Hale v. Holder, which the Fourth Circuit affirmed.
Both Powell and Hale addressed Title VII claims from men who were not selected as FBI special agents, establishing that to prove sex discrimination, plaintiffs must demonstrate they faced a significantly greater burden meeting physical fitness standards than women. Title VII permits employers to differentiate based on legitimate physical differences, provided that the burden of compliance is similar for both sexes. The findings indicate that the Physical Fitness Test (PFT) did not impose a greater burden on men compared to women, as both genders passed the PFT at nearly identical rates, with a historical pass rate of 99% from 2004 to 2012, revealing no significant sex-based disparity.
Specifically, the 2005 Grubb Report showed that 90.2% of male and 89.5% of female new agent trainees (NATs) passed the PFT by the seventh week of training, with the marginal difference being statistically insignificant. Additionally, during a Pilot Study, the FBI found that around 84% of both male and female NATs met their respective pushup requirements, indicating equivalent burdens imposed by the pushup test.
The plaintiff contends that the percentiles from the Pilot Study are not representative of overall fitness levels between genders; however, this argument does not change the fact that the PFT, including the pushup component, yields consistent pass rates for both men and women. Therefore, under the legal standards and the undisputed factual record, the defendant's motion for summary judgment is warranted, and the plaintiff's discrimination claims fail as a matter of law.
Plaintiff's claim that the pushup requirement disproportionately burdens one sex is unsupported by evidence, as the 2005 Grubb Report and data from 2004 to 2012 show nearly identical PFT pass rates for men and women. The absence of statistically significant data from the plaintiff over the past decade undermines the argument for a recurring error. Experts for both parties agree that no perfect mathematical formula exists for determining the physiological equivalence of pushups between sexes; the most reliable approach involves using percentile ranks from large datasets. The FBI developed its pushup standards based on the 2003 Pilot Study NATs, which provided a representative sample. Even if this dataset were flawed, the plaintiff's alternative source, the Cooper Institute, also indicates that the pushup standards do not impose a greater burden on men. The PFT's pushup requirements (30 for men and 14 for women) closely align with the Cooper Institute's 60th percentile norms (30 for men and 15 for women), suggesting minimal disparity. The plaintiff's argument about a single pushup difference does not establish significant burden. The conclusion is supported by precedents from Hale v. Holder and Powell v. Reno, where similar claims of sex discrimination regarding PFT standards were rejected.
The EEOC rejected the plaintiff's claim, finding that the Physical Fitness Test (PFT) applied nondiscriminatory standards to both males and females, establishing equivalent relative fitness requirements. The Hale decision noted that differences in numerical standards for each PFT event reflected necessary adjustments for physiological differences between genders, evidenced by male trainees' pass rates equaling or exceeding those of female trainees. Thus, the PFT was determined not to impose a significantly greater burden on males or create barriers to their employment as Special Agents. Similarly, in Powell v. Reno, the court ruled that the FBI's physical fitness test did not discriminate against a male trainee who alleged sex discrimination after failing the test, concluding there was no significantly greater burden on men. Despite the plaintiff's argument that these cases were not instructive, the Fourth Circuit affirmed their relevance, stating they specifically endorsed gender-normed standards used by the FBI. The plaintiff’s attempt to distinguish his case from Hale and Powell was unconvincing, as the record indicated that failure to pass the PFT justified termination of employment. The plaintiff’s additional arguments, including statistical claims about dismissals from the training program, were flawed, as they lacked statistical significance, omitted data from 2004, and failed to consider the total number of trainees, obscuring the true failure rates necessary for assessing discrimination.
Statistical data indicates that 99% of both men and women pass the Physical Fitness Test (PFT), including the pushup component, which undermines the plaintiff's argument against summary judgment. The plaintiff refers to FBI policy changes in 2004 and 2005 regarding pushup counting methods, but these were applied equally to both genders and were outdated by the time the plaintiff began training in 2009 when instructors counted pushups. The claim that the PFT was not age-normed is unfounded; the FBI had considered age-related norms and applied standards beneficial to older trainees. Additionally, the plaintiff's assertion that the PFT standards are not equivalent for men and women fails because the FBI did take into account the Cooper Institute norms, which do not support claims of a greater burden on men. The plaintiff's challenge to the 30-pushup quota as a bona fide occupational qualification (BFOQ) is misplaced, as a BFOQ defense is only necessary if a significantly greater burden on men is demonstrated, which is not the case here. Despite the plaintiff's commitment to becoming an FBI special agent, the evidence supports that no greater burden was imposed on him compared to women, leading to the conclusion that the sex discrimination claim is unsubstantiated. As a result, the defendant's motion for summary judgment is granted, and the plaintiff's cross-motion is denied. The court also clarifies that it treats "sex" and "gender" interchangeably, noting procedural updates regarding the defendants and correcting the statutory reference to sex discrimination in federal employment, which does not affect the case's merits.
Plaintiff asserts that the failure to meet the Physical Fitness Test (PFT) standards was not intentional. FBI instructors conducted the pushup counts during the PFT as per Bureau policy established in 2005. Selection of PFT events and minimum passing standards is detailed in two reports by Dr. Amy D. Grubb: the 2003 Grubb Report and the 2005 Grubb Report. Of the participants, 10 out of 236 men (4.2%) and none of the 57 women (0%) failed the PFT at the first week of training, but this failure rate was not statistically significant. The FBI set the minimum passing scores at the 15.7th percentile for males and the 15.9th percentile for females based on the Pilot Study data. The Fourth Circuit referenced the Ninth Circuit's Gerdom case, which established that a crucial factor in sex discrimination claims related to "physiologically based policies" is whether compliance burdens are disproportionately greater for one sex. The data indicates that it was easier for men to pass the PFT compared to women. Additionally, the PFT was less demanding for the plaintiff than the Cooper Institute norms, as the latter requires pushups to be completed within a minute, while the PFT is untimed.
The plaintiff contends that the 2005 Cooper Institute norms establish that the 50-55th percentile for pushups is 27-29 for men and 14 for women, arguing that the Physical Fitness Test (PFT) requirement of 30 pushups for men constitutes sex discrimination. However, the document notes that the difference of one pushup does not significantly burden one sex more than the other. It references legal precedents indicating that disparities must be statistically significant to indicate discrimination and that not all disparities are indicative of discrimination. A bona fide occupational qualification (BFOQ) defense requires the employment policy to be an objective, verifiable measure of job-related skills. While it was found that the PFT provided an objective measure, it was concluded that it was not sufficiently focused on job-related skills, particularly as the FBI initially did not impose fitness tests on current agents. After the lawsuit was initiated, the FBI began requiring such tests for current agents. The Fourth Circuit did not evaluate the BFOQ defense in a subsequent case.
