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Home / Top Legal News / TEST CASE: 4th Circuit reverses dismissal of ADEA, Title VII claims 

TEST CASE: 4th Circuit reverses dismissal of ADEA, Title VII claims 

By Nick Hurston
BTM Wire Services 

A plaintiff who said a required physical fitness test was a discriminatory condition of her government employment and that she was injured by a loss of income when she resigned after failing it can pursue claims under the Age Discrimination in Employment Act and Title VII. 

The 4th U.S. Circuit Court of Appeals reversed a lower court holding that the plaintiff lacked standing because her resignation did not constitute an “adverse employment action” under the ADEA or Title VII of the Civil Rights Act. 

“[T]he district court inappropriately intertwined its standing analysis with the merits,” Judge Julian N. Richardson wrote for the court. “[The plaintiff] 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.” 

Richardson’s decision in DiCocco v. Garland (VLW 022-2-236) was joined by Senior Judge Henry F. Floyd and Judge J. Harvie Wilkinson. 

 Resignation 

Dr. Jane DiCocco was 67 years old when she was hired in 2014 as a psychiatrist with the Bureau of Prisons, or BOP, to work at a correctional facility in Petersburg. All prison employees, regardless of age, position or gender, had to pass a physical abilities test. 

DiCocco failed the test and refused to retake it within 24 hours because she feared that she would be unable to satisfactorily complete it in her exhausted physical condition. The Bureau told her that, unless she resigned, she would be fired for not passing the test. 

DiCocco resigned and filed a complaint in the Eastern District of Virginia, alleging disparate-impact theories of sex discrimination under Title VII and age discrimination under the ADEA. 

The government argued that DiCocco lacked standing. Alternatively, it claimed she had failed to plead an adverse employment action, and that her ADEA claim was barred by sovereign immunity. 

The Eastern District of Virginia dismissed DiCocco’s complaint for lack of standing.  

Standing 

The 4th Circuit panel noted that 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 found that DiCocco failed to state a valid cause of action because she alleged no injury and therefore lacked standing. 

Richardson disagreed.  

“[T]his approach improperly conflated the threshold standing question with the merits of her claims,” he explained. “Standing does not turn on whether a plaintiff has definitively stated a valid cause of action. In other words, a valid claim for relief is not a prerequisite for standing.” 

Here, DiCocco sufficiently pleaded an injury in fact by alleging 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,” Richardson noted. 

The judge pointed out that “a plaintiff’s injury is not fairly traceable to the defendant’s action if the plaintiff ‘independently caused his own injury.’” 

But DiCocco’s contentions didn’t show she independently caused her own injuries; her complaint said that, unless she resigned, the BOP would fire her. 

“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,” Richardson wrote. 

The judge concluded that DiCocco had sufficiently asserted her injuries were caused by the BOP’s allegedly discriminatory policy that required new hires to take and pass the test or be terminated because, without that policy, she would not have resigned.  

Disparate impact 

The government originally argued that the suit was barred by sovereign immunity because the ADEA provision governing federal employees provides no disparate impact cause of action.  

Another 4th Circuit panel had agreed, but the decision was vacated after a rehearing en banc.  

Prior to oral argument about the standing issue raised here, the government reversed its position, agreeing that the ADEA permits disparate impact claims by federal employees.  

“In light of this unusual change in position, the en banc court returned the case to the panel,” Richardson wrote. “We now remand 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.” 

The court also remanded the question of whether DiCocco’s Title VII claim failed to show an adverse employment action to the district court. 


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