Brigida v. United States Department of Transportation ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANDREW J. BRIGIDA, et al.,
Plaintiffs,
v.
No. 16-cv-2227 (DLF)
PETE BUTTIGIEG,1
Secretary, U.S. Dep’t of Transportation,
Defendant.
MEMORANDUM OPINION
Plaintiffs Andrew Brigida and Matthew Douglas-Cook, on behalf of themselves and a
putative class, assert employment discrimination claims against the Federal Aviation
Administration (FAA) under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Title
VII). Before the Court is the FAA’s Motion to Dismiss in Part the Plaintiffs’ Fourth Amended
Complaint, Dkt. 119. For the reasons that follow, the Court will deny the motion.
I. BACKGROUND2
“The FAA’s mission is to provide the safest, most efficient aerospace system in the
world.” Fourth Am. Compl. ¶ 13, Dkt. 114. To help execute this mission, the FAA employs Air
Traffic Controller Specialists (ATCS). “ATCSs carry out thousands of air traffic control actions
1
When this suit began, Elaine Chao was the Secretary of Transportation. When Pete Buttigieg
became the Secretary, he was automatically substituted as the proper defendant. See Fed. R. Civ.
P. 25(d).
2
As required when deciding a Rule 12(b)(6) motion, the facts in this opinion are drawn only
from the complaint itself, documents attached to the complaint, documents incorporated by
reference in the complaint, and judicially noticeable materials. See Banneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015); EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997).
daily and require significant training to prepare” for a job with zero margin for error. Id. ¶ 16.
The FAA hires air traffic controllers from multiple sources, including military veterans and
members of the general public. Id. ¶ 18. Because of the number of controllers needed, the
difficulty of the training, and the demands of the role, in 1991, the FAA also established the Air
Traffic-Collegiate Training Initiative (AT-CTI or CTI) program, entering into “partnership
agreements with colleges, universities, and other schools (collectively, CTI [i]nstitutions) to
administer” the AT-CTI program. Id. ¶¶ 21–25 (internal quotation marks omitted). According
to the plaintiffs, CTI institutions provide students with an air traffic curriculum that includes
approximately 200 hours of classroom instruction. Id. ¶ 25.
In the years following the program’s creation, AT-CTI candidates proved successful, and
the FAA “actively encouraged potential applicants to pursue CTI training as the primary means
of obtaining employment as an air traffic controller.” Id. ¶ 27. By 2008, the FAA used a
separate hiring process for qualified CTI candidates. Id. ¶ 34. Graduates of CTI institutions who
were U.S. citizens, received their institution’s recommendation, were below a maximum age, id.
¶ 35, and who “pass[ed] a validated air traffic aptitude test, known as the Air Traffic Control
Selection and Training examination” (AT-SAT), id. ¶ 28, were “eligible to apply for CTI-only
job postings,” id. ¶ 35. Those who scored 85 and above on the AT-SAT were classified as “well-
qualified,” while candidates who scored between 70 and 84.9 were classified as “qualified.”
Id. ¶ 32.
From these three recruitment pipelines—the general public, veterans, and AT-CTI
candidates—the FAA “built a substantial inventory of eligible air traffic controller applicants
with varying degrees of experience and education.” Id. ¶ 67. Plaintiffs allege, however, that
“CTI Qualified Applicants . . . received hiring preference or were more likely to be hired for
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ATCS positions,” id. ¶¶ 35, 49, and that CTI students were significantly more likely to succeed
once hired as a trainee and to ultimately obtain “Certified Professional Controller” status than
those hired from the general public, id. ¶ 46.
Allegedly in response to outside pressure, id. ¶¶ 54–70, over the course of 2012 and
2013, the FAA conducted a “barrier analysis for the ATCS positions,” id. ¶ 71, to determine
whether the existing hiring processes served to discourage hiring minority applicants, id. ¶¶ 72–
79. Though plaintiffs characterize it as “deeply flawed and outcome-driven,” id. ¶ 80, the report
determined that “African American applicants comprise only 5% of the CTI pool compared to an
average of 34% African American representation across the non-CTI applicant sources,” id. ¶ 79.
In response to this analysis, in 2014, the FAA implemented several changes to its hiring
process for air traffic controllers, eliminating CTI-only vacancy announcements, creating a new
testing and evaluation process, and ending its consideration of prior applicants in the FAA’s
inventory of eligible applicants. See id. at 2. These changes form the basis of this case.
According to the plaintiffs, they “had legitimate expectations for their hiring after they
invested thousands of dollars and years of time to graduate from FAA-partnered academic
programs, and pass FAA-designed, peer-validated, and proctored aptitude tests in order to be
prequalified for hiring as FAA Air Traffic Control Specialists (ATCS).” Id. at 1 (internal
quotation marks omitted). Plaintiffs allege that the FAA violated Title VII when it “purged” its
“merit-based hiring preference for Qualified Applicants for Air Traffic Controllers with the
intent and purpose of benefitting African American Air Traffic Controller applicants and
hindering the Class members.” Id. ¶ 195. The FAA then violated Title VII again when it
“implemented” a “Biographical Questionnaire into the 2014 [Air Traffic Controller] hiring
process with the intent and purpose of benefitting African American Air Traffic Controller
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applicants and hindering the Class members.” Id. ¶ 198. The plaintiffs claim that in so doing
“the FAA refused to accept the outcome of a race-neutral hiring process solely because of the
racial makeup of the successful applicants,” id. ¶ 196, and in its place, created a new “race-
motivated hiring scheme,” id. at 2.
Plaintiffs further allege that to accomplish its objective of limiting the hiring of qualified
non-African American CTI candidates, “the FAA intentionally slowed its hiring in 2012 and
2013 in anticipation of abandoning the CTI Qualified Applicant hiring preference.” Id. ¶ 38.
Indeed, according to the plaintiffs, the FAA “issued a CTI-only ATCS job posting in August of
2012” but “no hires were made as a result of that posting.” Id. ¶ 76. These actions were taken
even though the FAA’s “hiring plan required the FAA to hire over 1,000 controllers per year in
calendar years 2012, 2013, and 2014.” Id. ¶ 37. When the FAA opened the “new general public
announcement for the ATCS positions” on February 10, 2014, “[a]pproximately 4,000 CTI
graduates took the Biographical Questionnaire” but “less than 14% of them passed.”3 Id. ¶ 115.
Plaintiff Andrew Brigida is a Caucasian male, a resident of Arizona, and an August 2013
graduate of Arizona State University, a CTI institution. Id. ¶¶ 153–54. Brigida passed the AT-
SAT on April 3, 2013 “with the top numerical score possible of 100%.” Id. ¶ 153. Following
the FAA’s changes in the air traffic controller hiring process, he took and failed the newly
3
Though not at issue in this motion, the Plaintiffs allege that the FAA failed to “validate” the
Biographical Questionnaire, Fourth Am. Compl. ¶ 117, and that the Biographical Questionnaire
awarded points to applicants in a fashion untethered to the qualifications necessary to be an air
traffic controller, id. ¶¶ 119–20. For instance, applicants could be awarded fifteen points, the
highest possible for any question, if they indicated their lowest grade in high school was in a
science class. Id. ¶ 119. But applicants received only two points if they had a pilot’s certificate,
and no points at all if they had a Control Tower Operator rating, id., even though historic
research data indicated that those criteria had “a positive relationship with ATCS training
outcomes,” id. ¶ 123. Further, if applicants answered that they had not been employed at all in
the prior three years, they received 10 points, the most awarded for that question. Id. ¶ 120.
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implemented Biographical Questionnaire in 2014. Id. ¶¶ 158, 160. Plaintiff Matthew Douglas-
Cook, a Native American male, resident of the State of Washington, and December 2013
graduate of another CTI institution, also took and passed the AT-SAT, recording the top
numerical score possible. Id. ¶¶ 5, 167–68. He too subsequently failed the Biographical
Questionnaire. Id. ¶¶ 170–71. Neither Brigida nor Douglas-Cook were hired by the FAA as an
air traffic controller. Id. ¶¶ 160, 172.
II. LEGAL STANDARDS
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to
dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). To survive a Rule 12(b)(6) motion, the complaint must contain factual matter
sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A facially plausible claim is one that “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). This standard does not amount to a specific probability requirement,
but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id. A
complaint need not contain “detailed factual allegations,” but alleging facts that are “merely
consistent with a defendant’s liability . . . stops short of the line between possibility and
plausibility.” Id. (internal quotation omitted).
Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679, and
the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471,
476 (D.C. Cir. 2012) (internal quotation marks omitted). But the assumption of truth does not
apply to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal
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quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is
not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. Ultimately, “[d]etermining whether a
complaint states a plausible claim for relief . . . [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679.
III. ANALYSIS
The FAA contends that the plaintiffs have not plausibly alleged that they were either
employees or applicants for employment at the time the FAA changed its process for appointing
air traffic controllers. As a result, the FAA argues that the plaintiffs cannot state a claim under
Title VII because the FAA cannot be said to have taken any employment action, let alone one
that was adverse. The Court disagrees. The plaintiffs have plausibly alleged both that they were
applicants and that they suffered an adverse employment action.
Title VII requires executive agencies to make “[a]ll personnel actions affecting
employees or applicants for employment . . . free from any discrimination based on race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a) (emphasis added). To state a claim
under Title VII, “the two essential elements of a discrimination claim are that (i) the plaintiff
suffered an adverse employment action (ii) because of the plaintiff’s race, color, religion, sex,
[or] national origin[.]” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). The
challenged personnel action must entail “a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing significant change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.
Cir. 2003).
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A. Applicant Requirement
Title VII does not define “applicant for employment,” but this Court has previously
explained that the term “applicant for employment . . . contemplates a person who has filed a
written application for a particular position with a government agency, or who has sought to
file such an application but has been denied the opportunity.” See Pueschel v. Chao, 357 F.
Supp. 3d 18, 26 (D.D.C. 2018), aff’d, 955 F.3d 163 (D.C. Cir. 2020). Because Title VII’s
“complaint procedure is complex and expensive,” courts looks for a “triggering event” that is
“concrete and specific” so as to “give[] individuals the power to invoke” its protections. Id.;
see also Hockett v. Adm’r of Veterans Affs., 385 F. Supp. 1106, 1112 (N.D. Ohio 1974).
The parties disagree over when CTI candidates became “applicants” for purposes of
Title VII. The plaintiffs contend they became applicants at the point they took the AT-SAT.
See Fourth Am. Compl. at 1 (stating plaintiffs had “legitimate expectations for their hiring”
after they took and passed the “FAA-designed, peer-validated, and proctored aptitude tests”);
Tr. of April 21, 2021 Motions Hearing at 174 (“[O]nce . . . class members took [the AT-SAT],
they became applicants.”). On the other hand, the FAA argues that the plaintiffs were never
applicants because they did not respond to any specific vacancy announcement, see Def.’s
Reply at 9, Dkt. 121, and the FAA “ha[d] a highly structured process that only consider[ed]
those who respond[ed] to specific public vacancy announcements,” id. at 6.
Although the FAA’s position—that CTI candidates were required to respond to an
official vacancy announcement before they could be deemed applicants under Title VII, see id.
at 9—has some appeal, it does not prevail at this stage. As alleged in the complaint, the
4
The official transcript of the motions hearing held on April 21, 2021 is forthcoming, and this
opinion will be updated to include citations to that transcript when it becomes available.
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plaintiffs became applicants for employment with the FAA when they took the AT-SAT, see
Fourth Am. Compl. at 1, the “Air Traffic Selection and Training Test Battery (AT-SAT),” id.
¶ 28 (emphasis added), because the FAA “designed, peer-validated, and proctored” the
examination, id. at 1, in order to screen out applicants, see id. ¶ 32 (“Applicants who scored
below 70 were classified as ‘not qualified’ by the FAA and were not eligible for hire to ATCS
positions.”).
Other courts in this district have recognized that taking a screening examination, created
and scored by an agency for a specific position, can qualify an individual as an applicant for
employment under Title VII, even if other steps in the application process remain. See Hartman
v. Gelb, No. 77-cv-2019, 1992 WL 754646, at *2 n.3 (D.D.C. July 9, 1992) (noting in the
context of a Title VII class action that “any woman who took the [State Department’s Foreign
Service] examination qualified as an ‘applicant’” even if she did not “survive[] every stage of the
hiring process” (emphasis added); cf. Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp.
952, 966 (D.D.C. 1980) (“[A]ny applicant who was willing to pursue the rather rudimentary, and
at times disagreeable, program afforded preapprentices . . . was clearly interested in the
apprenticeship program and sheet metal trade. There is nothing misleading in classifying those
individuals routed into preapprenticeship[s] as applicants.”). Similarly, here, the AT-SAT
examination was a prequalifying test designed to screen individuals for a specialized position.
See Fourth Am. Compl. ¶¶ 28–29, 32. And individuals who took the AT-SAT did so solely to
become FAA air traffic controllers. See id. ¶ 28. The fact that other steps in the process
remained did not make the CTI candidates who took the AT-SAT any less applicants than other
individuals who took similar prequalifying tests. See e.g., Hartman, 1992 WL 754646, at *2 n.3;
cf. Lewis v. City of Chicago, 560 U.S. 205, 208–09, 212 (2010) (holding that “the exclusion of
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passing applicants who scored below 89 . . . when selecting those who would advance” to future
application steps constituted an “employment practice” giving rise to liability under Title VII).
Several aspects of the FAA’s past practice also support the plaintiffs’ claim that they
were applicants. First, the FAA concedes, and the complaint alleges, see Fourth Am. Compl.
¶ 52, that the AT-SAT examination was part of the application for individuals who applied
through the public vacancy process, see Defs.’ Mot. at 21; Tr. of Hearing at 5–6. Accepting
the FAA’s position, then, would mean that the AT-SAT was merely a preapplication
prerequisite for one set of individuals but a critical step in the application process for another
set of individuals, even though the FAA used the same test in both circumstances to cull the
pool of candidates under consideration for a job as an air traffic controller. And second, the
FAA not only designed and administered the AT-SAT, Fourth Am. Compl. ¶ 1, it also spent
time and resources tracking CTI candidates’ progress in school and their performance on the
AT-SAT. As alleged, the FAA kept an inventory of CTI students who passed the AT-SAT, see
id. ¶ 186, and it ranked them according to their performance, id. ¶ 32. The FAA then notified
those who were prequalified for an air traffic controller vacancy whenever a CTI-only vacancy
became available. See id. ¶ 35, 109; Tr. of Hearing at 25. Thus, “the FAA gave [the plaintiffs]
reason to believe that [their] application[s] would remain on file for consideration as Controller
positions became available.” Yeschick v. Mineta, 521 F.3d 498, 504–05 (6th Cir. 2008)
(holding that plaintiff plausibly alleged he was an “applicant for employment” with the FAA
even though he “did not follow up on his application” because, inter alia, he reasonably
believed that his application would remain on file for consideration as “positions became
available”).
The FAA’s categorical position that the plaintiffs were not Title VII “applicants for
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employment” because they had not yet responded to an official vacancy announcement, see
Defs.’ Reply at 9, is also undermined by the D.C. Circuit’s decision in Chambers v. Burwell,
824 F.3d 141 (D.C. Cir. 2016). There, the Circuit cautioned courts against focusing
excessively on whether an employer has technically opened a vacancy in determining whether
an employee is an applicant for promotion. Id. at 144; cf. Lewis, 560 U.S. at 212, 214(suggesting that the protections of Title VII extended to firefighters who took a required
employment examination even though no vacancies were open). As the court in Chambers
explained, an undue focus on an open vacancy announcement would, for instance, permit a
“manager [who] regularly requests and receives . . . vacancies that are earmarked for his
subordinates” to base “his decision not to engage in that process because of an employee’s
disability or race.” Chambers, 824 F.3d. at 145.
Although Chambers addressed a Title VII failure to promote—rather than a failure to
hire—claim, its reasoning is applicable here, particularly where the complaint plausibly alleges
that from August 2012 until February 2014, the FAA stalled the hiring of air traffic controllers.
See Fourth Am. Compl. ¶¶ 37–38, 76. As the complaint alleges, the FAA delayed hiring even
though the air traffic controller “hiring plan required the FAA to hire over 1,000 [air traffic]
controllers per year in calendar years 2012, 2013, and 2014,” see id. ¶ 37 (emphasis added); see
also id. ¶ 38 (alleging that “the FAA slowed and eventually froze the processing and hiring of
new ATCS applicants,” and it did so “in anticipation of abandoning the CTI Qualified
Applicant hiring preference and adopting a new, yet to be determined, hiring process that
would favor African Americans”); Pls.’ Opp’n at 19 (“[T]here was a backlog of thousands of
ATCS position vacancies, but the FAA chose not to hire for them.”). In other words, the FAA
implemented a highly structured and consistent hiring process, Fourth Am. Compl. ¶¶ 23–35,
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that it abandoned solely because of the racial composition of the successful candidate pool, see
id. at 1–2. That is precisely the kind of “artificial, arbitrary, and unnecessary barrier[] to
employment and professional development” that Title VII prohibits. See Connecticut v. Teal,
457 U.S. 440, 451 (1982) (internal quotation marks omitted).
In sum, reading the complaint as a whole and crediting all inferences in favor of the
plaintiffs, as the Court must at this stage, the plaintiffs have plausibly alleged they were
“applicants for employment.” The plaintiffs were U.S. citizens who had graduated from CTI
schools5 and passed the AT-SAT.6 See Fourth Am. Compl. ¶¶ 153–56, 167–69. They had been
tracked by the FAA, see id. ¶¶ 32, 186, and were part of the FAA’s preapproved inventory of
applicants, see id. at 2. Neither, however, was able to complete the application process because
the FAA declined to open a vacancy and then purged its preapproved list of candidates, allegedly
for discriminatory reasons. Id. at 1–2. Thus, “unlike the typical employment situation where an
individual applies for a particular opening,” the plaintiffs were “appli[cants] for Controller
positions that could [have] become vacant at any time.” Yeschick, 521 F.3d at 504–05.
Consistent with decisions in this Circuit, and based on the facts alleged in the complaint, the
Court must reject the FAA’s bright-line vacancy response position. See Chambers, 824 F.3d at
144.
5
Brigida graduated in August 2013. Fourth Am. Compl. ¶ 154. Douglas-Cook graduated in
December 2013. Id. ¶ 168.
6
Unlike Brigida, Douglas-Cook lacked a favorable recommendation from his CTI school.
Compare Fourth Am. Compl. ¶ 154, with id. ¶ 168. But as the complaint alleges, Douglas-Cook
would have received a favorable recommendation but for the FAA’s directive to CTI schools to
suspend recommendation letters. See id. ¶ 168.
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B. Adverse Employment Action Requirement
In the alternative, the FAA argues that, because “Title VII protects equal treatment, not
preferential treatment,” the FAA’s decision to withdraw the separate hiring process previously
afforded CTI-applicants was not an adverse employment action. See Def.’s Mot. at 1; Baloch,
550 F.3d at 1196 (stating that an “essential element[] of a discrimination claim” is that “the
plaintiff suffered an adverse employment action”).
Here, the complaint alleges more than the mere withdrawal of a preference. Instead, the
allegations describe the FAA’s decision to abolish, for allegedly discriminatory purposes, a
purportedly race-neutral application process that the FAA designed and implemented and in
which the plaintiffs had invested substantial time, energy, and resources at the encouragement of
the FAA itself. See Fourth Am. Compl. at 1–2. According to the plaintiffs, the FAA purged the
plaintiffs’ AT-SAT scores and required them to reapply through a new process that, oddly
enough, included the cognitive portion of the AT-SAT. See id. ¶ 106. This suggests the problem
may not have been with the test itself, but “with a particular set of results.” Cf. Maraschiello v.
City of Buffalo Police Dep’t, 709 F.3d 87, 95–96 (2d Cir. 2013) (holding at summary judgment
that the plaintiff had failed to establish an inference of discrimination where the City did not
“discard[]” “the results of a specific test” but instead engaged in a “generalized overhaul of
departmental promotional requirements” between hiring rounds).
These allegations mirror those in cases that have found Title VII violations where an
application process was redesigned solely to change the racial composition of the successful
applicant pool. See Ricci v. DeStefano, 557 U.S. 557, 579–80 (2009). The Supreme Court has
stressed that disparate treatment “occur[s] where an employer has treated a particular person less
favorably than others because of a protected trait.” Ricci, 557 U.S. at 577 (emphasis added and
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internal quotation marks omitted). This is because “Title VII . . . reflects the American promise
of equal opportunity in the workforce.” Figueroa v. Pompeo, 923 F.3d 1078, 1082–83 (D.C.
Cir. 2019) (emphasis added); see also Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971)
(explaining that the purpose of Title VII “is to promote hiring on the basis of job qualifications,
rather than on the basis of race or color”). The plaintiffs have plausibly alleged, at least at this
stage, that they “experience[d] materially adverse consequences affecting . . . future employment
opportunities.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).
CONCLUSION
Because the plaintiffs have plausibly alleged that they were applicants who were
subjected to an adverse employment action, the Court denies the FAA’s partial motion to
dismiss, Dkt. 119. A separate order consistent with this decision accompanies this memorandum
opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
May 12, 2021
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