Court improperly conflated standing, merits analysis

Where the district court held an employee lacked standing because she alleged no injury, that was wrong. The employee alleged she was injured by a loss of employment and the resulting loss of wages and other benefits from an allegedly discriminatory physical-fitness test. Such harms are “classic and paradigmatic” injuries for standing purposes.

Background

Dr. Jane DiCocco brought claims under Title VII and the Age Discrimination in Employment Act, or ADEA, because she failed an allegedly discriminatory physical-fitness test that was a condition of her federal employment and was told to either retake the test, resign or be fired. She resigned. The district court dismissed her complaint for lack of Article III standing, finding that her resignation did not constitute an “adverse employment action” that could serve as the basis of either claim.

Injury

A plaintiff has Article III standing if she (1) suffers an injury in fact that is (2) fairly traceable to the challenged conduct and (3) likely to be redressed if the court rules in her favor.

The district court began its analysis by finding that Dr. DiCocco failed to state a valid cause of action because she alleged no injury and therefore lacked standing. But this approach improperly conflated the threshold standing question with the merits of her claims. A valid claim for relief is not a prerequisite for standing.

Dr. DiCocco has adequately pleaded an injury in fact. Dr. DiCocco alleges that she was injured by a loss of employment and the resulting loss of wages and other benefits. Such harms are “classic and paradigmatic” injuries for standing purposes.

Causation and remedies

Even so, a plaintiff’s injury is not fairly traceable to the defendant’s action if the plaintiff “independently caused his own injury.” But Dr. DiCocco’s allegations — which must be taken as true at this stage — do not show that she independently caused her own injuries.

Dr. DiCocco’s complaint alleges that unless she resigned, her employment with the Bureau of Prisons, or BOP “would be terminated for failure to pass the [test] within the required times.” Perhaps Dr. DiCocco’s choice to resign rather than retake the test was a proximate cause of her injuries. But that does not defeat standing.

She has alleged that her injuries were caused by BOP’s allegedly discriminatory policy requiring new hires to take and pass the test or be terminated. Without that policy, according to Dr. DiCocco, she would not have resigned. So on the face of the complaint, Dr. DiCocco’s alleged injuries are fairly traceable to the BOP’s actions. Finally, the government does not dispute that Dr. DiCocco properly alleges that her injury will “likely” be “redressed by a favorable decision.”

Alternative arguments

Before the district court and on appeal, the government argued that the suit was barred by sovereign immunity because the ADEA provision governing federal employees provides no disparate-impact cause of action. A panel of this court agreed over a thoughtful dissent.

Dr. DiCocco petitioned for rehearing en banc, and the government again pressed its legal position that the applicable ADEA provision did not encompass disparate-impact liability. The court granted the petition and vacated the panel decision. Then, just before oral argument, the government informed the court that, contrary to its position explained in its March 2022 en banc briefing and its earlier panel briefing, it now believed disparate- impact claims are cognizable under the federal-sector provision of the ADEA.

In light of this unusual change in position, the en banc court returned the case to the panel. The court now remands to permit the district court to consider the ADEA claim, including, should the district court deem it necessary, whether or not the disparate-impact standard provides the appropriate framework for its resolution.

Finally the government contends that the Title VII claim fails because Dr. DiCocco cannot show an adverse employment action. The court declines to address that threshold question, which appears to be unanswered in this circuit and underdeveloped in other circuits. Instead it is remanded to the district court for consideration in the first instance.

Vacated and remanded.

DiCocco v. Garland, Case No. 20-1342, Nov. 3, 2022. 4th Cir. (Richardson), from EDVA at Richmond (Gibney). Jay J. Levit for Appellant. Jonathan Tyler Lucier for Appellee. VLW 022-2-236. 8 pp.