U.S. Justice Dept. must face psychiatrist’s bias lawsuit over fitness test – Reuters

(Reuters) – The U.S. Department of Justice must face an age and sex discrimination lawsuit by a former prison psychiatrist who quit her job after failing a rigorous physical fitness test when she was 67 years old, a U.S. appeals court said on Thursday.

A unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals reversed a Virginia federal judge and said Jane DiCocco’s claims that she suffered financial and professional injuries because she could not pass the test were enough to keep her lawsuit alive.

DiCocco resigned from her job with the U.S. Bureau of Prisons, a unit of DOJ, in 2015 after she failed the fitness test and was told she would be fired. The test required employees to drag a 75-pound dummy for three minutes, climb a ladder in seven seconds, run a quarter mile and complete an obstacle course.

A federal judge in Richmond, Virginia had ruled that DiCocco lacked standing to sue for age bias because she had resigned and was not fired.

But the 4th Circuit panel said DiCocco had adequately alleged that the fitness test was biased against women and older employees, and that she had no choice but to resign because she could not pass it.

The Department of Justice did not immediately respond to a request for comment. Neither did lawyers for DiCocco.

Thursday’s ruling was the result of an unusual procedural twist in the case.

DiCocco had appealed in 2020 after U.S. District Judge John Gibney dismissed her lawsuit. Last year, the same 4th Circuit panel that issued Thursday’s decision revived her sex discrimination claim.

But the court, agreeing with the Trump-era DOJ, held that the federal Age Discrimination in Employment Act (ADEA) bars federal employees from suing over policies that have a disparate impact on older workers. The panel said the ADEA provision involving claims by federal employees was narrower than the one covering other kinds of workers.

The panel ruling created a split with the 9th and 10th Circuits, which have allowed disparate impact claims by federal workers in ADEA cases.

The full court vacated that ruling and granted en banc review, but DOJ in August informed the 4th Circuit that it had changed its position on the age bias issue. That prompted the 4th Circuit to reassign the case to the three-judge panel.

On Thursday, the panel said it would be improper to consider the ADEA issue given the reversal in DOJ’s position, and remanded the case to Gibney to consider it.

The panel includes Circuit Judges J. Harvie Wilkinson, Julius Richardson and Henry Floyd.

The case is DiCocco v. Garland, 4th U.S. Circuit Court of Appeals, No. 20-1342.

For DiCocco: Jay Levit of Jay J. Levit Law Office; Scott Crowley of Crowley & Crowley

For the AG’s office: Jonathan Lucier of the U.S. Department of Justice

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