DiCocco v. Garland

• Decision Date: 17 November 2021
• Docket Number: No. 20-1342,20-1342
• Citation: 18 F.4th 406
• Parties: Jane D. DICOCCO, MD, Plaintiff-Appellant, v. Merrick B. GARLAND, Attorney General, United States Department of Justice, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

18 F.4th 406

Jane D. DICOCCO, MD, Plaintiff-Appellant,

v.Merrick B. GARLAND, Attorney General, United States Department of Justice, Defendant-Appellee.

No. 20-1342

United States Court of Appeals, Fourth Circuit.

Argued: March 11, 2021

Decided: November 17, 2021

ARGUED: Jay J. Levit, LAW OFFICE OF JAY J. LEVIT, Glen Allen, Virginia, for Appellant. Jonathan Tyler Lucier, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Scott G. Crowley, Sr., CROWLEY & CROWLEY, P.C., Glen Allen, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before WILKINSON, FLOYD, and RICHARDSON, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Richardson wrote the opinion, in which Judge Wilkinson joined. Judge Floyd wrote an opinion concurring in part and dissenting in part.

RICHARDSON, Circuit Judge

Dr. Jane DiCocco brought Title VII and Age Discrimination in Employment Act ("ADEA") claims against the U.S. Attorney General 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.

But the district court inappropriately intertwined its standing analysis with the merits. Dr. DiCocco alleged that she suffered financial and job-related injuries in fact that are fairly traceable to the government's action and likely to be redressed by a favorable ruling. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). So she has Article III standing. But we must still dismiss her ADEA claim because the ADEA provision applicable to federal-sector employees does not provide a disparate-impact cause of action. So her claim does not fall within the government's waiver of sovereign immunity. We decline, however, to address arguments for rejecting her remaining Title VII claim under Rule 12(b)(6). We therefore affirm the district court's dismissal of the ADEA claim but remand the Title VII claim for further proceedings.

I. Background

In July 2014, Dr. Jane DiCocco accepted a job as a psychiatrist with the Bureau of Prisons ("BOP") at the Federal Correctional Complex in Petersburg, Virginia. At that time, Dr. DiCocco was sixty-seven years old.

As a condition of her hiring, Dr. DiCocco—like all new BOP employees regardless of age, position, or gender—had to take and pass the Physical Abilities Test. Employees taking the test must drag a seventy-five-pound dummy at least 694 feet for three minutes, climb a ladder to retrieve an object within seven seconds, complete an obstacle course in fifty-eight seconds, run a quarter mile and handcuff someone within two minutes and thirty-five seconds, and climb three flights of stairs in forty-five seconds while wearing a twenty-pound weight belt. Employees receive scores for the five components, which are aggregated and measured against a passing composite score.

The first time Dr. DiCocco took the test, she failed. Under BOP policy, she could retake the test within twenty-four hours, but she declined, "fearing that in her exhausted physical condition, she would be unable [to] complete it in a satisfactory time during the second attempt." J.A. 7. She was then "informed that unless she resigned, her employment with BOP would be terminated for failure to pass the [test] within the required times." Id. She chose to resign.

After exhausting her administrative remedies, Dr. DiCocco filed a complaint in federal district court against the Attorney General, alleging disparate-impact theories of sex discrimination under Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and age discrimination under the ADEA, 29 U.S.C. §§ 621 – 634. The government moved to dismiss her complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim. The district court dismissed the complaint without prejudice for lack of standing, finding that Dr. DiCocco had not suffered an injury in fact traceable to the BOP's actions because the facts in her complaint did not constitute an "adverse employment action" under Title VII or the ADEA. DiCocco v. Barr , No. 3:19-cv-159, 2020 WL 902530, at *2–5 (E.D. Va. Feb. 25, 2020). Dr. DiCocco timely appealed.

We have jurisdiction to hear her appeal under 28 U.S.C. § 1291 because the standing defect identified by the district court could not have been cured by amendment. See Bing v. Brivo Sys., LLC , 959 F.3d 605, 610 (4th Cir. 2020).

II. Discussion

We may affirm the district court's dismissal on "any grounds apparent from the record." Pitt Cnty. v. Hotels.com, L.P. , 553 F.3d 308, 311 (4th Cir. 2009) (quoting Suter v. United States , 441 F.3d 306, 311 (4th Cir. 2006) ). The Government raises three: (1) lack of Article III standing, (2) absence of a disparate-impact cause of action falling under the ADEA's sovereign-immunity waiver, and (3) failure to state a claim under Title VII. We hold that Dr. DiCocco has standing but that the ADEA's federal-employer provision does not include claims for disparate-impact liability. Finally, we remand the Title VII claim for consideration by the district court.

A. Standing

We start with whether Dr. DiCocco has standing to bring both claims. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). 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. Lujan , 504 U.S. at 560, 112 S.Ct. 2130. We review the district court's dismissal for lack of standing de novo. Miller v. Brown , 462 F.3d 312, 316 (4th Cir. 2006). Because the government brought a "facial" challenge to Dr. DiCocco's standing, contending "that [the] complaint simply fails to allege facts upon which subject matter jurisdiction can be based," we accept all well-pleaded facts in the complaint as true. Beck v. McDonald , 848 F.3d 262, 270 (4th Cir. 2017) (quoting Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009) ).

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. DiCocco , 2020 WL 902530, at *3–5. But this approach improperly conflated the threshold standing question with the merits of her claims. Pitt Cnty. , 553 F.3d at 312. Standing does not turn on whether a plaintiff has definitively stated a valid cause of action. Id. ; Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 128 n.4, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) ("[T]he absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e. , the court's statutory or constitutional power to adjudicate the case." (quoting Verizon Md. Inc. v. Pub. Serv. Comm'n of Md. , 535 U.S. 635, 642–43, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) )). In other words, a valid claim for relief is not a prerequisite for standing. See, e.g., Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2416, 201 L.Ed.2d 775 (2018) (rejecting an argument that plaintiffs lacked Article III standing because the Establishment Clause did not "give them a legally protected interest"). "For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell v. Hood , 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

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. See J.A. 10–11. Such harms are "classic and paradigmatic" injuries for standing purposes. Air Evac EMS, Inc. v. Cheatham , 910 F.3d 751, 760 (4th Cir. 2018) (quoting Cottrell v. Alcon Lab'ys , 874 F.3d 154, 163 (3d Cir. 2017) ); see also Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Emps. of Libr. of Congress, Inc. v. Billington , 737 F.3d 767, 770–73 (D.C. Cir. 2013) (plaintiffs had Article III standing to bring Title VII retaliation claim based on the alleged denial of certain benefits, but still failed to state a claim because the complaint did not allege that any plaintiff engaged in a statutorily protected activity leading to a materially adverse action).

To satisfy standing's causation requirement, the alleged injury must be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Lujan , 504 U.S. at 560, 112 S.Ct. 2130 (alterations in original) (quoting Simon v. E. Ky. Welfare Rts. Org. , 426 U.S. 26, 41–42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ). At the motion-to-dismiss stage, this burden is "relatively modest," Bennett v. Spear , 520 U.S. 154, 171, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), and lower than the causation showing required to prevail in a tort suit, Nat. Res. Def. Council, Inc. v. Watkins , 954 F.2d 974, 980 n.7 (4th Cir. 1992) (citing Pub. Int. Rsch. Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc. , 913 F.2d 64, 72 (3d Cir. 1990) ). "Proximate causation is not a requirement of Article III standing ...." Lexmark , 572 U.S. at 134 n.6, 134 S.Ct. 1377.

Even so, a plaintiff's injury is not fairly traceable to the defendant's action if the plaintiff "independently caused his own injury." Swann v. Sec'y, Ga. , 668 F.3d 1285, 1288 (11th Cir. 2012) ; see also Buchholz v. Meyer Njus Tanick, PA , 946 F.3d 855, 866 (6th Cir. 2020) ; cf. Pennsylvania v. New Jersey , 426 U.S. 660, 664, 667, 96 S.Ct. 2333, 49 L.Ed.2d 124 (1976) (injuries...