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,

(D.C. Cir. 2015); EEOC v. St. Francis Xavier Parochial Sch.,

(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

2 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

3 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.

4 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,

(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,

(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.”

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.”

(internal quotation omitted).

Well-pleaded factual allegations are “entitled to [an] assumption of truth,”

, 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,

(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,

(internal

5 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.”

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.”

.

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,

(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,

(D.C.

Cir. 2003).

6 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,

(D.D.C. 2018), aff’d,

(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.,

(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”);

Mot. Hr’g Tr. at 20, Dkt. 1344 (“[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

plaintiffs became applicants for employment with the FAA when they took the AT-SAT, see

4 This opinion was updated to include the citations to the final hearing transcript.

7 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,

, 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,

(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,

, at *2 n.3;

cf. Lewis v. City of Chicago,

, 208–09, 212 (2010) (holding that “the exclusion of

8 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; Mot. Hr’g Tr. at 7–8. 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; Mot. Hr’g Tr. at 26–27. 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,

, 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

9 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,

(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.

; cf. Lewis,

(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,

.

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,

10 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,

(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,

.

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.

11 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,

(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,

, 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,

, 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,

(emphasis added and

12 internal quotation marks omitted). This is because “Title VII . . . reflects the American promise

of equal opportunity in the workforce.” Figueroa v. Pompeo,

, 1082–83 (D.C.

Cir. 2019) (emphasis added); see also Griggs v. Duke Power Co.,

(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,

(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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