Bauer v. Holder

Filing 215

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 5/25/2017. (dest, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JAY J. BAUER,
Plaintiff,
v.
JEFFERSON B. SESSIONS, III,
Defendant.

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Case No. 1:13-cv-93

MEMORANDUM OPINION
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

1

This Memorandum Opinion, consistent with circuit precedent, proceeds by treating the terms,
sex and gender, as fungible. See Bauer v. Lynch, 812 F.3d 340, 347 n.9 (4th Cir. 2016).
2

Because plaintiff filed this matter in 2012, several persons have been substituted as defendant,
pursuant to Rule 25(d), Fed. R. Civ. P. The current Attorney General and defendant in this matter
is Jefferson Sessions, III.

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. § 2000e2(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 (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 (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

3

As the Fourth Circuit noted on appeal, the complaint incorrectly invoked § 2000e-2(a)(1),
which addresses discrimination in the private sector. The correct provision here is § 2000e-16(a),
which prohibits sex discrimination by federal employers. Yet, this mistake “is of no moment”
because the Fourth Circuit “ha[s] treated §§ 2000e-2(a) and 2000e-16(a) as comparable, with the
liability standards governing the former being applicable to the latter.” 812 F.3d at 345 n.3.
2

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.

3

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

4

Plaintiff has represented that this was not an intentional miss. It is also worth noting that FBI
instructors counted NATs’ pushups during the PFT, in accordance with a Bureau policy in
place since 2005.
4

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 15.7th percentile for males and at the 15.9th
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
5

The FBI’s process in selecting the PFT events and minimum passing standards is chronicled in
two reports authored by Amy D. Grubb, Ph.D., an FBI Industrial/Organizational Psychologist—a
2003 study titled “Validation of a Physical Training Test: Report of Standards, Findings, and
Recommendations” (“2003 Grubb Report”) and a 2005 study titled “The Physical Fitness Test:
An Evaluation of the Standards and Report of Validation Evidence” (“2005 Grubb Report”).
6

Plaintiff correctly notes that 10 out of 236 men (4.24%), and 0 of 57 women (0%) failed the
PFT at week 1 of the training program by failing to achieve the minimum score in one of the 4
events. Yet, there is no indication in the record that this total was statistically significant, and it
has no bearing on the ultimate, undisputed conclusion the FBI set the minimum score at the
15.7th percentile for males and at the 15.9th percentile for females who had participated in the
Pilot Study.
5

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 60th 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 when the FBI compared the PFT standards to the Cooper
Institute norms in 2005, the Bureau looked to the laxer norms for 30-39 year olds, rather than
those for 20-29 year olds.
Both parties’ experts agree, however, that there is no mathematical equation that can
predict the physiological equivalent of a number of pushups for men versus women. Rather, the
only reliable way to attempt to identify equivalent standards for men and women on a pushup
test is to rely on metrics such as equivalent percentile ranks, derived from either large, general
databases or narrower, more-representative datasets.

6

II.
Where, as here, the parties have filed cross motions for summary judgment, each motion
must be reviewed “separately on its own merits to determine whether either of the parties
deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)
(quotation marks omitted). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The movant bears the burden to show the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its
burden, the opposing party, in order to defeat the motion, must set forth specific facts showing a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Finally,
“[T]he facts, with reasonable inferences drawn,” are viewed “in the light most favorable” to the
non-moving party. Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007).
The legal question on remand is a narrow and straightforward one: whether defendant’s
use of gender-normed physical fitness standards imposed a significantly greater burden
on plaintiff, a male, than on women, by requiring men to show a higher level of fitness.
As the Fourth Circuit put it,
[A]n 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.
Bauer II, 812 F.3d at 351. In other words, “Whether physical fitness standards discriminate
based on sex … depends on whether they require men and women to demonstrate different levels
of fitness.” Id.
In adopting this approach, the Fourth Circuit relied principally a district court case,
Powell v. Reno, No. 962743, 1997 U.S. Dist. LEXIS 24169 (D.D.C. July 24, 1999), and an Equal
7

Employment Opportunity Commission (“EEOC”) decision, Hale v. Holder, EEOC Dec. No.
570–2007–00423X (Sept. 20, 2010). After analyzing both cases in depth, the Fourth Circuit
stated that it “agree[d] with the rule enunciated in Powell and in Hale.” Bauer II, 812 F.3d at
351. Notably, both Powell and Hale involved Title VII challenges brought by men after they had
failed to become FBI special agents. And both courts enunciated the rule that the plaintiffs, to
prove sex discrimination under Title VII, had to show that they faced a “significantly greater
burden” of compliance with physical fitness standards than did females. See Powell, 1997 U.S.
Dist. LEXIS 24169, at *9-10 (“Title VII allows employers to make distinctions based on
undeniable physical differences between men and women ... where no significantly greater
burden of compliance [is] imposed on either sex.”); Hale, EEOC Dec. No. 570-2007-00432X,
slip op. at 6 (“[I]t is clear that the physiologically-based distinctions in the PFT did not place a
‘significantly greater burden’ on males than on females.”).7
These principles, applied to the undisputed factual record, point persuasively to the
conclusion that the PFT did not impose a significantly greater burden on plaintiff than it did on
women. Thus, for the reasons that follow, defendant’s summary judgment motion must be
granted, and plaintiff’s must be denied.
III.
Regardless whether analysis focuses on the PFT as a whole, or on the pushup
requirement alone, the result under the “rule enunciated” in Powell, Hale, and Bauer II is the
same—summary judgment must be awarded to defendant. See Bauer II, 812 F.3d at 351. This is
7

As the Fourth Circuit noted, both Powell and Hale “relied largely” on the Ninth Circuit’s en
banc decision in Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982). Bauer II,
812 F.3d at 348. And importantly, the Gerdom court found that the “key consideration” on a sex
discrimination claim involving “physiologically based policies” is whether a “significantly
greater burden of compliance [i]s imposed on either sex.” Gerdom, 692 F.2d at 606, cited
favorably in Bauer II, 812 F.3d at 349-50.
8

so because the undisputed factual record discloses that men and women pass the PFT at
essentially identical rates, and that the normalized pushup quotas impose essentially similar
burdens on both sexes. Plaintiff’s discrimination claims therefore fail as a matter of law.
To begin with, the undisputed factual record reflects that the PFT as a whole does not
impose a significantly greater burden of compliance on men than on women. For instance, the
2005 Grubb Report reflects that 90.2% of male NATs and 89.5% of female NATs who had taken
the PFT by the seventh week of their respective training programs had passed the test. That same
report also found that the marginal difference in pass rates between the sexes was statistically
insignificant.8 These findings are uncontested. Nor are they anomalies; indeed, from 2004 to
2012, 99% of both men and women—more than 6,000 NATs—passed the PFT, with no
statistically significant difference between sexes. Given the standard set forth in Bauer II, the
undisputed statistics in the summary judgment record demonstrate that the PFT does not impose
a greater burden on men. If it did impose a significantly greater burden on one sex, the PFT
would not produce such high and practically identical pass rates year over year.
The undisputed factual record compels the same conclusion even if the pushup event is
evaluated in isolation. In this respect, it is worth repeating that the FBI set the minimum score at
the 15.7th percentile for males and at the 15.9th percentile for females who had participated in the
Pilot Study. That is, the FBI found in the Pilot Study that almost precisely 84% of male NATs
had completed at least 30 pushups, and that almost precisely 84% of female NATs had
completed at least 14 pushups. These statistics—from what the factual record discloses is a
representative sample—demonstrate that the pushup test imposes the same burden on men and
women.

8

These data in fact reflect that it was easier for men to pass the PFT than it was for women.
9

In response, plaintiff argues that percentiles in the 2003 Pilot Study are meaningless, as
they derive solely from the pilot study’s class of NATs. Thus, plaintiffs argue, the percentiles
may not necessarily reflect equivalent fitness levels for men and women. In this regard, plaintiff
appears to identify the classic problem of accuracy versus precision. For instance, it is
hypothetically possible (1) that all of the male NATs in the 2003 Pilot Study were in, say, the top
1% of men in terms of physical fitness, (2) that all of the female NATs in that study were in the
top 20% of women, and (3) that therefore the FBI calibrated its gender-normed standards at
significantly disparate fitness percentiles. Were that the case, the pushup requirement would
require greater physical fitness from men than from women. On the other hand, in such a
scenario—where, as plaintiff alleges, the pushup requirement significantly overburdens one
sex—the PFT pass rates would eventually reflect that error through statistically significant
disparities. But the 2005 Grubb Report and nearly a decade’s worth of data from 2004 to 2012
confirm that the PFT and pushup test impose the same burden on men and women, because the
pass rates for men and women are almost identical. Indeed, plaintiffs have offered no statistically
significant data to suggest that there has been some recurring error over the last decade. Thus,
however conceivable this hypothetical scenario may be, there is no competent evidence in the
record to support it, and thus this hypothetical cannot forestall summary judgment.
But plaintiff’s argument fails on a more fundamental ground because the parties’ experts
agree that there is no perfect, mathematical equation to predict the physiological equivalent of a
number of pushups for men versus women. Instead, the only reliable way to attempt to select
equivalent, gender-normed standards on a pushup test is to rely on metrics such as percentile
ranks, based on either large databases or specific datasets. That is precisely what the FBI did
here. Indeed, the FBI developed its minimum passing standards for the pushup event based on

10

what has proven to be, based on the near-identical pass rates, a representative sample of
individuals—the 2003 Pilot Study NATs.
Yet, even assuming, arguendo, the 2003 Pilot Study NATs did not comprise an
appropriate dataset to establish the PFT’s pushup standards, plaintiff’s preferred source of
data—the Cooper Institute, which collected statistics from the general public instead of typical
FBI trainees—still compels the conclusion that the pushup event does not impose a significantly
greater burden on men. Notably, the PFT’s pushup benchmarks correspond almost exactly to the
2009 Cooper Institute pushup norms for the 30-39 age group at the 60th percentile. Where the
PFT requires men and women to perform 30 and 14 pushups, respectively, to exhaustion, the
Cooper Institute 60th percentile norm is 30 pushups for men and 15 for women in a minute.9 Put
differently, the PFT deviates from plaintiff’s preferred standard by a single pushup. And
although in plaintiff’s experience a single, untimed pushup marked the difference between
passing and failing the PFT, the difference between requiring women to perform 14 or 15
pushups does not reflect a significantly greater burden on men.10
Once again, it must be emphasized that there is no perfect, unassailable method to predict
the physiological equivalent of pushups for one sex versus another. Indeed, it is undisputed that
the best method is to use a large database, like the Cooper Institute’s, or a specific, more
representative sample, like the 2003 Pilot Study. That the FBI created a pushup standard that

9

It is worth noting that the PFT imposed a lighter burden on plaintiff than would than the Cooper
Institute norms, because the Cooper Institute norms require that the number of pushups be
completed in a minute, whereas the PFT is untimed.
10

Plaintiff also argues that the 2005 Cooper Institute norms for the 50-55th percentile in the
general population was 27-29 pushups for men, and 14 pushups for women. Thus, plaintiff
appears to argue that the PFT’s requirement than men perform 30 pushups instead of 29
constituted sex discrimination. But, once again, a single pushup here does not create a
significantly greater burden on one sex versus the other.
11

essentially comports with both datasets does not support plaintiff’s claim of a significantly
greater burden. In short, plaintiff cannot show that the pushup event, even when isolated from the
rest of the PFT, imposes a significantly greater burden on men than on women.
The conclusion reached here is bolstered by the two decisions on which the Bauer II
panel chiefly relied: Hale v. Holder,11 and Powell v. Reno.12 See Bauer II, 812 F.3d at 348-51. As
the Fourth Circuit observed in Bauer II, the Hale opinion rejected “a Title VII claim nearly
identical to the one that Bauer sponsors: that of a male [NAT] who failed to meet the PFT’s
current male standards.” Id. at 348 (citing Hale, EEOC Dec. No. 570-2007-00423X, slip op. at
2). Specifically, in Hale a former NAT alleged that the FBI discriminated against him on the
basis of sex because he failed to meet the PFT’s requirement that he score a point in every event.
He further alleged that he “would have received passing scores … had the [FBI] scored his
performance in … accordance with the fitness measures applied to female trainees.” EEOC Dec.
No. 570-2007-00423X, slip op. at 3. The EEOC squarely rejected this claim, concluding that the
PFT—which had the same standards as in plaintiff’s case here—did not impose a significantly
greater burden on men. Id. at 4. Rather, the EEOC found that “the PFT established equivalent
relative fitness standards for males and females and thereby applied nondiscriminatory fitness
requirements to its trainees.” Id. The Hale decision further held that the FBI’s subsequent studies
“demonstrate that the numerical standards for each PFT event differed for men and women only
to the extent necessary to account for indisputable physiological differences between the
genders,” as evidenced by the fact that “the PFT pass rates for male NATs have equaled or
exceeded that for their female counterparts.” Id. at 6. Thus, it could “hardly be said that the PFT

11

EEOC Dec. No. 570–2007–00423X (Sept. 20, 2010).

12

No. 962743, 1997 U.S. Dist. LEXIS 24169 (D.D.C. July 24, 1999).
12

more significantly burdens males or creates barriers to their employment as S[pecial] A[gent]s.”
Id. The same is true here.
Similarly, the district court in Powell v. Reno concluded that the FBI’s pre-PFT, five-part
physical fitness test did not discriminate against a male NAT who, after failing that test, alleged
sex discrimination on the ground that he would have met the FBI’s “less stringent standards”
imposed on female NATs. See 1997 U.S. Dist. LEXIS 24169, at *1. The Powell court granted
summary judgment to the defendant, concluding that there was “no significantly greater burden
of compliance” on men and thus “the application of the male standards to plaintiff was not
discriminatory.” Id. at *9. To put it succinctly, then, the two most factually apposite cases
applying the relevant legal standard arrived at precisely the same conclusion as that reached here.
To be sure, plaintiff argues that these cases are not “particularly instructive.” P. Br.
(Doc. 200) at 19. But this contention ignores the Fourth Circuit’s plain observations in Bauer II:
(1) that “Powell and Hale specifically addressed and approved the FBI’s use of gender-normed
standards at the Academy and thus bear directly on this appeal,” and (2) that Hale in particular
involved a “claim nearly identical to the one that Bauer sponsors[.]” 812 F.3d at 348. To be sure,
plaintiff correctly notes that in Hale there was no evidence offered in opposition to the FBI’s
summary judgment motion, and that the summary judgment record there showed that “mere
failure to pass the PFT … would not be sufficient to justify termination of a NAT’s
employment.” EEOC Dec. No. 570-2007-00423X, slip op. at 2. But these distinctions are
immaterial. First, the fact that plaintiff, unlike the claimant in Hale, actually opposes summary
judgment does not itself create a genuine dispute of fact. Second, here, unlike in Hale, the record
does demonstrate that a NAT’s failure to pass the PFT was a sufficient justification for
termination of employment. That is precisely what the document plaintiff received at the outset

13

of his training—the “Rules, Regulations and Requirements at the FBI Academy for New Agent
Trainees”—states. Plaintiff’s attempts to distance this matter from the cases expressly endorsed
in Bauer II are thus unpersuasive.
Plaintiff offers several other arguments in support of his motion, and in opposition to
defendant’s motion, for summary judgment. None is convincing. First, plaintiff asserts that from
2005-2012, 33 men and 2 women were dismissed from the NAT training program solely because
they failed the PFT. In this respect, plaintiff observes that 22 of those men and none of the
women failed the PFT solely because of the pushup event. In plaintiff’s view, these data reflect a
significantly greater burden on men. There are several fatal flaws in this argument. Most
important, plaintiff does not even attempt to determine whether those numbers are statistically
significant or instead due to pure chance.13 Moreover, plaintiff’s focus on the years between
2005 and 2012 skews the results by omitting 2004, a year in which five female NATs failed the
pushup event. Plaintiff’s numbers also exclude the total number of NATs who have taken
the PFT, which further distorts his results and obfuscates crucial context—namely, the true failure
rate among NATs—necessary to determining whether there is indeed a significantly greater
burden on men than on women. After all, the undisputed, statistically sound data
demonstrate that 99% of both men and women pass the PFT, including its pushup event.

13

See EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1191 (4th Cir. 1981) (“The difference between
actual (‘observed’) numbers of the protected group in … a sample and the number that would be
‘expected’ in a perfectly proportional process of selection from the appropriate pool can … be
expressed in numbers of standard deviations. In turn, standard deviations can be expressed in
terms of the mathematical probability that chance is the cause of the disparities … measured. As
standard deviations increase numerically, the probability of chance as the cause of revealed
underrepresentation of course diminishes.”); see also Ottaviani v. State Univ. of N.Y., 875 F.2d
365, 371 (2d Cir. 1989) (“Not all disparities … are probative of discrimination. Before a
deviation from a predicted outcome can be considered probative, the deviation must be
‘statistically significant.’”).
14

Plaintiff’s analysis therefore does not create a genuine dispute of fact sufficient to forestall
summary judgment.
Second, plaintiff underscores two of the FBI’s policy changes in 2004 and 2005, where
the Bureau briefly used two different methods for counting pushups during the PFT. Specifically,
one year the FBI used mechanical counters, and the other year the FBI had NATs tally their
fellow trainees’ pushups. But these policy changes are inapposite. Not only did the FBI apply
these methods equally to men and women—belying any claim of sex discrimination—but the
Bureau had long abandoned these two counting methods before plaintiff arrived at the Academy
in 2009. By the time plaintiff became a NAT, the established practice was to have
instructors count each NAT’s pushups.14 These policy changes are simply irrelevant to plaintiff’s
sex discrimination claim.
Third, plaintiff contends that the PFT was not age-normed to account for differences in a
given NAT’s age. This argument is also meritless, as plaintiff has not alleged an age
discrimination claim. In fact, the undisputed factual record discloses that the FBI did consider the
Cooper Institute’s 30-39 age range, and gave NATs the benefit of the doubt by imposing
standards correlative to 30-39 year olds, as opposed to a younger age range. Thus, plaintiff’s
contention is not only immaterial, but also incorrect.
Fourth, plaintiff argues that the FBI disregarded the Cooper Institute norms that, in
plaintiff’s view, indicate that the PFT standards are not equivalent for men and women. This
argument is unpersuasive because the FBI did consider the Cooper Institute norms and, as
explained above, those norms do not support plaintiff’s claim that he was subjected to a
significantly greater burden than were women.

14

See supra note 4.
15

Finally, plaintiff asserts that the FBI cannot justify its use of a 30-pushup quota as a bona
fide occupational qualification (“BFOQ”). Although the opinion in Bauer I agreed,15 plaintiff’s
attempt to reprise a BFOQ argument here places the cart in front of the horse. That is, an
employment practice need not be justified by a BFOQ—and a BFOQ defense need not be
reached—unless plaintiff first shows a significantly greater burden of compliance on men. See,
e.g., Earwood Continental SE Lines, Inc., 539 F.2d 1349, 1351 n.5 (4th Cir. 1976) (“Since
we hold that [defendant]’s regulation does not discriminate in violation of Title VII, we need
not consider whether it involves a [BFOQ].”). Here, because the undisputed factual record and
the applicable legal standard foreclose a finding of sex discrimination, plaintiff’s argument
regarding the lack of a BFOQ is unavailing.
III.
There is no questioning plaintiff’s bona fide desire to become an FBI special agent.
Indeed, he continues to serve this country as an FBI analyst. And it may well be the case that the
Bureau’s treatment of plaintiff could fairly be described as shabby. But the governing legal
principles, applied to this summary judgment record, point convincingly to the conclusion that
that the FBI did not impose a greater burden on plaintiff than it did on women. Plaintiff’s sex

15

As stated in Bauer I, a BFOQ defense requires that the challenged employment policy be “an
objective, verifiable requirement” that “concern[s] job-related skills and aptitudes.” Bauer I, 25
F. Supp. 3d at 862 (quoting Int'l Union, United Auto., Aerospace & Agr. Implement Workers of
Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 203 (1991)). After determining that plaintiff
had shown sex discrimination, the Bauer I opinion further concluded that “[a]lthough defendant
… successfully demonstrated that the PFT provides an objective, verifiable measure of physical
fitness, defendant … failed to meet the second BFOQ requirement—that the PFT is properly
focused on job-related skills and aptitudes.” Id. at 863 (quotation marks omitted). In this respect,
the FBI’s explanations for implementing the PFT were “inconsistent” and, oddly, the Bureau did
not impose physical fitness tests on incumbent special agents. See id. After plaintiff initiated this
lawsuit, however, the FBI began requiring current agents to complete a physical fitness test
similar to the PFT. See, e.g., Bauer v. Sessions, No. 1:13-cv-93 (E.D. Va. Mar. 24, 2017) (Hr’g
Tr.) at 11:19-22. The Fourth Circuit did not address the BFOQ defense in its opinion in Bauer II.
16

discrimination claim therefore fails. Accordingly, defendant's summary judgment motion will be

granted. and plaintiff's cross motion will be denied.
An appropriate Order will issue.
Alexandria, Virginia

May2S.2017

T. S• .Ellis,m

United Stafcs Dill" ttiCt

17