U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19-cv-01581-KBJ

BIRD et al v. BARR Assigned to: Judge Ketanji Brown Jackson Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 05/29/2019 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant

Plaintiff
PAULA BIRD on behalf of themselves and a class of those similarly situated

represented by Christine E. Webber COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, NW Suite 500 Washington, DC 20005-3934 (202) 408-4600, x4616 Fax: (202) 408-4699 Email: cwebber@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Sellers COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower Washington, DC 20005 (202) 408-4604 Fax: (202) 408-4699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy N. Cammarano COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave NW 5th Floor Washington, DC 20005 202-408-4600 Email:

Plaintiff CLARE COETZER on behalf of themselves and a class of those similarly situated
Plaintiff LAUREN ROSE on behalf of themselves and a class of those similarly situated

scammarano@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer DAVID J. SHAFFER 5012 Aurora Drive Kensington, MD 20895 (202) 210-7424 Email: david.shaffer@davidshafferlaw.com ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano

Plaintiff DANIELLE SNIDER on behalf of themselves and a class of those similarly situated
Plaintiff ERIKA WESLEY on behalf of themselves and a class of those similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer

Plaintiff B.A. on behalf of themselves and a class of those similarly situated
Plaintiff D.A. on behalf of themselves and a class of those similarly situated
Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED

S.B. on behalf of themselves and a class of those similarly situated
Plaintiff D.C. on behalf of themselves and a class of those similarly situated
Plaintiff P.E. on behalf of themselves and a class of those similarly situated

represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff B.G. on behalf of themselves and a class of those similarly situated
Plaintiff L.M. TERMINATED: 01/31/2020

Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff W.M. on behalf of themselves and a class of those similarly situated
Plaintiff C.S. on behalf of themselves and a class of those similarly situated

Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff L.S. on behalf of themselves and a class of those similarly situated
Plaintiff G.T. on behalf of themselves and a class of those similarly situated
Plaintiff

David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED

SPENCER LEE
Plaintiff ALL PLAINTIFFS
Plaintiff T. S. V. Defendant

represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Shaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy N. Cammarano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine E. Webber (See above for address) ATTORNEY TO BE NOTICED

WILLIAM P. BARR named in his official Capacity, and head of the Department of Justice

represented by Amber Richer U.S. DEPARTMENT OF JUSTICE 1100 L St NW Washington, DC 20005 202-514-3489 Email: amber.richer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin M. Tomlinson U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 480 Ben Franklin Station Washington, DC 20044 (202) 353-4556 Email: martin.m.tomlinson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/29/2019
05/29/2019
06/06/2019 06/19/2019

# Docket Text

COMPLAINT against All Defendants with Jury Demand ( Filing

1

fee $ 400 receipt number 0090-6152998) filed by B.G., D.A.,

CLARE COETZER, PAULA BIRD, W.M., G.T., B.A., LAUREN

ROSE, D.C., M.L., C.S., L.S., S.B., DANIELLE SNIDER, P.E.,

ERIKA WESLEY. (Attachments: # 1 Civil Cover Sheet,

# 2 Summons)(Shaffer, David) (Entered: 05/29/2019)

2 MOTION to Proceed Under Pseudonym by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY (Attachments: # 1 Text of Proposed Order)(Shaffer, David) (Additional attachment(s) added on 6/7/2019: # 2 Exhibit) (zsb). (Entered: 05/29/2019)

3 ORDER granting in part and denying in part 2 Motion for Leave to Proceed Under Pseudonym. Signed by Chief Judge Beryl A. Howell on 06/06/2019. (zsb) (Entered: 06/07/2019)

4 SEALED MOTION for Reconsideration of Motion to Proceed Anonymously filed by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY. (This

06/26/2019
06/27/2019 07/03/2019 07/08/2019 07/09/2019
07/10/2019

document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order)(zef, ) (Entered: 06/20/2019)

MINUTE ORDER (paperless) DENYING WITHOUT PREJUDICE the plaintiffs' 4 Motion for Reconsideration of Motion to Proceed Anonymously (Sealed). Review of the plaintiffs' motion and supporting documentation suggests that the motion is not complete, as it was filed in draft form, with highlights and comments visible and several citations left blank. Moreover, the declarations in support of the motion are, for the most part, unsigned and undated. The plaintiffs' attorney failed to respond to this Court's attempt to verify whether the filings were complete. Accordingly, the motion is denied without prejudice. Signed by Chief Judge Beryl A. Howell on June 26, 2019. (lcbah4) Modified on 6/26/2019 to edit a word (hmc). (Entered: 06/26/2019)

5 SEALED CORRECTED MOTION FOR RECONSIDERATION OF MOTION TO PROCEED ANONYMOUSLY filed by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support, # 3 Exhibit)(zef, ) (Entered: 06/27/2019)

MEMORANDUM OPINION AND ORDER GRANTED in part

6

DENIED in part re 5 SEALED MOTION. Signed by Chief Judge

Beryl A. Howell on 07/03/2019.(See Order for details.)(zmc)

(Entered: 07/03/2019)

Case Assigned to Judge Ketanji Brown Jackson. (zsb) (Entered: 07/09/2019)

7 GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions and filing exhibits. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 7/9/2019. (lckbj1) (Entered: 07/09/2019)

SUMMONS (1) Issued Electronically as to WILLIAM P. BARR,

8

U.S. Attorney General (Attachment: # 1 Notice and Consent)(zeg)

(Entered: 07/10/2019)

07/13/2019

9 COMPLAINT against WILLIAM P. BARR with Jury Demand (Fee Status:Filing Fee Waived) filed by B.G., D.A., CLARE COETZER, PAULA BIRD, W.M., G.T., B.A., LAUREN ROSE, D.C., C.S., L.S., S.B., DANIELLE SNIDER, P.E., ERIKA WESLEY, Spencer Lee.(Shaffer, David) (Entered: 07/13/2019)

07/21/2019 10

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/15/2019. (Attachments: # 1 Affidavit Affidavit of Service on Barr c/o Asst. Atty. General for Administration, # 2 Affidavit Affidavit of Service on Barr c/o U.S Atty for DC)(Shaffer, David) (Entered: 07/21/2019)

07/29/2019

11 NOTICE of Appearance by Martin M. Tomlinson on behalf of WILLIAM P. BARR (Tomlinson, Martin) (Entered: 07/29/2019)

08/01/2019

12 NOTICE of Appearance by Christine E. Webber on behalf of All Plaintiffs (Webber, Christine) (Entered: 08/01/2019)

08/01/2019

13 NOTICE of Appearance by Stacy N. Cammarano on behalf of All Plaintiffs (Cammarano, Stacy) (Entered: 08/01/2019)

08/01/2019

14 NOTICE of Appearance by Joseph M. Sellers on behalf of All Plaintiffs (Sellers, Joseph) (Entered: 08/01/2019)

08/02/2019 15

MOTION for Preliminary Injunction Plaintiffs' Motion for Preliminary Injunction for Protection From Retaliation by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., Spencer Lee, M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY (Attachments: # 1 Memorandum in Support Plaintiffs' Memorandum of Points and Authorities in Support of Their Motion for Preliminary Injunction for Protection From Retaliation, # 2 Exhibit Exhibit Index, # 3 Exhibit EXHIBIT 1, # 4 Exhibit EXHIBIT 2, # 5 Exhibit EXHIBIT 3, # 6 Exhibit EXHIBIT 4, # 7 Exhibit EXHIBIT 5, # 8 Exhibit EXHIBIT 6, # 9 Exhibit EXHIBIT 7, # 10 Exhibit EXHIBIT 8, # 11 Exhibit EXHIBIT 9, # 12 Text of Proposed Order PROPOSED ORDER ON PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION)(Webber, Christine) (Entered: 08/02/2019)

08/09/2019

16 RESPONSE re 15 MOTION for Preliminary Injunction Plaintiffs' Motion for Preliminary Injunction for Protection From Retaliation filed by WILLIAM P. BARR. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Declaration Exhibit 1 - Declaration of Angela Y. Norman, # 3 Declaration

08/12/2019 08/16/2019
08/16/2019 08/16/2019 08/16/2019 08/19/2019

Exhibit 2 - Declaration of Andrew Braun, # 4 Declaration Exhibit 3 - Declaration of Gina Orton, # 5 Exhibit Exhibit 4 - FBI Reasonable Accommodation Policy, # 6 Text of Proposed Order Proposed Order)(Tomlinson, Martin) (Entered: 08/09/2019)
MINUTE ORDER. It is hereby ORDERED that Plaintiffs shall file
a reply in further support of their 15 Motion for a Preliminary Injunction on or before 8/16/2019. Signed by Judge Ketanji Brown Jackson on 8/12/2019. (lckbj1) (Entered: 08/12/2019)
17 REPLY to opposition to motion re 15 MOTION for Preliminary Injunction Plaintiffs' Motion for Preliminary Injunction for Protection From Retaliation filed by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., Spencer Lee, M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY. (Attachments: # 1 Exhibit Index, # 2 Exhibit 1 (Placeholder), # 3 Exhibit 2)(Webber, Christine) (Entered: 08/16/2019)
18 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., Spencer Lee, M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Webber, Christine) (Entered: 08/16/2019)
MINUTE ORDER granting 18 Sealed Motion for Leave to File Document Under Seal. Plaintiffs shall file a redacted version of the subject declaration on the public docket on or before 8/23/2019. Signed by Judge Ketanji Brown Jackson on 8/16/2019. (lckbj1) (Entered: 08/16/2019)
20 SEALED Exhibit re 17 Reply to opposition to Motion, filed by DANIELLE SNIDER, S.B., CLARE COETZER, B.A., LAUREN ROSE, L.S., W.M., B.G., D.C., P.E., ERIKA WESLEY, C.S., M.L., G.T., D.A., Spencer Lee, PAULA BIRD. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 08/23/2019)
MINUTE ORDER setting Motion Hearing on Plaintiffs' 15
Motion for Preliminary Injunction for 9/12/2019 at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by

Judge Ketanji Brown Jackson on 8/19/2019. (lckbj1) (Entered: 08/19/2019)

08/22/2019

19 RESPONSE TO ORDER OF THE COURT re Order on Sealed Motion for Leave to File Document Under Seal, Redacted Exhibit 1 to Plaintiffs' Reply in Support of Preliminary Injunction filed by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., Spencer Lee, M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY. (Cammarano, Stacy) (Entered: 08/22/2019)

09/10/2019 21

ORDER denying 15 Motion for Preliminary Injunction, vacating Motion Hearing set for 9/12/2019, and setting deadline of 9/20/2019 for Plaintiffs to file a motion to amend or an amended complaint. Signed by Judge Ketanji Brown Jackson on 9/10/2019. (lckbj1) (Entered: 09/10/2019)

09/12/2019

22 AMENDED COMPLAINT against All Defendants with Jury Demand filed by B.G., D.A., CLARE COETZER, PAULA BIRD, Spencer Lee, W.M., G.T., B.A., LAUREN ROSE, D.C., M.L., C.S., L.S., S.B., DANIELLE SNIDER, P.E., ERIKA WESLEY. (Attachments: # 1 Exhibit Def's Written Consent, # 2 Exhibit Complaint Comparison)(Webber, Christine) (Entered: 09/12/2019)

09/16/2019

23 Unopposed MOTION for Extension of Time to File Answer re 22 Amended Complaint, until October 25, 2019 by WILLIAM P. BARR (Tomlinson, Martin) (Entered: 09/16/2019)

09/16/2019

MINUTE ORDER granting, for good cause shown, 23 Unopposed Motion for Extension of Time to Answer. It is hereby ORDERED that Defendant shall answer or otherwise respond to the amended complaint on or before 10/25/2019. Signed by Judge Ketanji Brown Jackson on 9/16/2019. (lckbj1) (Entered: 09/16/2019)

09/25/2019

24 MOTION for Preliminary Injunction for Protection from Retaliation by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., SPENCER LEE, M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY (Attachments: # 1 Memorandum in Support, # 2 Exhibit Index of Exhibits, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Text of Proposed Order)(Webber, Christine) (Entered: 09/25/2019)

09/25/2019
09/27/2019 09/27/2019 10/02/2019
10/03/2019 10/07/2019 10/09/2019 10/09/2019

25 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by B.A., B.G., PAULA BIRD, C.S., CLARE COETZER, D.A., D.C., G.T., L.S., SPENCER LEE, M.L., P.E., LAUREN ROSE, S.B., DANIELLE SNIDER, W.M., ERIKA WESLEY (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1 UNREDACTED, # 2 Text of Proposed Order)(Webber, Christine) (Entered: 09/25/2019)
MINUTE ORDER granting 25 Sealed Motion for Leave to File Document Under Seal. Signed by Judge Ketanji Brown Jackson on 9/27/2019. (lckbj1) (Entered: 09/27/2019)
26 SEALED Declaration re 24 MOTION for Preliminary Injunction for Protection from Retaliation filed by filed by ALL PLAINTIFFS. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 10/01/2019)
27 RESPONSE re 24 MOTION for Preliminary Injunction for Protection from Retaliation filed by WILLIAM P. BARR. (Attachments: # 1 Appendix Index of Exhibits, # 2 Declaration Norman Declaration, # 3 Declaration Braun Declaration, # 4 Declaration Orton Declaration, # 5 Declaration Burzacchi Declaration, # 6 Exhibit Reasonable Accommodation Guide)(Tomlinson, Martin) (Entered: 10/03/2019)
28 NOTICE of Errata as to Exhibit 2 of Response and Notice of Filing Corrected Declaration by WILLIAM P. BARR re 27 Response to motion, (Attachments: # 1 Declaration Corrected Braun Declaration)(Tomlinson, Martin) (Entered: 10/03/2019)
29 Consent MOTION for Extension of Time to File Response/Reply as to 24 MOTION for Preliminary Injunction for Protection from Retaliation by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Cammarano, Stacy) (Entered: 10/07/2019)
30 REPLY to opposition to motion re 24 MOTION for Preliminary Injunction for Protection from Retaliation filed by ALL PLAINTIFFS. (Attachments: # 1 Appendix Exhibit Index, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Webber, Christine) (Entered: 10/09/2019)
31 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ALL PLAINTIFFS (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 2, # 2 Text of Proposed Order)(Webber, Christine) (Entered: 10/09/2019)

10/09/2019 10/15/2019 10/17/2019 10/22/2019
10/23/2019 10/24/2019 10/29/2019 12/10/2019

MINUTE ORDER finding as moot 29 Motion for Extension of Time to File Reply. Signed by Judge Ketanji Brown Jackson on 10/9/2019. (jag) Modified on 10/10/2019, to correct a chamber's error. (zgdf). (Entered: 10/09/2019)
MINUTE ORDER granting 31 Sealed Motion for Leave to File Document Under Seal. Signed by Judge Ketanji Brown Jackson on 10/15/2019. (jag) (Entered: 10/15/2019)
32 Consent MOTION for Extension of Time to File Answer re 9 Complaint, and Extension of time for Plaintiffs to Respond to Defendant's Anticipated Motion to Dismiss by WILLIAM P. BARR (Attachments: # 1 Text of Proposed Order Proposed Order)(Tomlinson, Martin) (Entered: 10/17/2019)
MINUTE ORDER: This Court has received the Defendant's 32 Consent Motion for an Extension of Time to Answer the Complaint in this matter. It is the practice of this Court that when a motion for a preliminary injunction has been filed before the defendant has answered or otherwise responded to the complaint, the defendant's obligation to respond to the complaint shall be suspended during the Court's consideration of the merits of the preliminary injunction motion. Accordingly, it is hereby ORDERED that Defendant's 32 Consent Motion for Extension of Time to Answer the Complaint is GRANTED in part and DENIED part. Defendant will have until 14 days after the Court issues its order on the 24 Motion for Preliminary Injunction to answer or otherwise respond to the Complaint. Signed by Judge Ketanji Brown Jackson on 10/22/2019. (JAG) Modified on 10/24/2019 to correct Chambers Error(zjch). (Entered: 10/22/2019)
33 SEALED Exhibit filed by ALL PLAINTIFFS. re 30 Reply to opposition to Motion, filed by ALL PLAINTIFFS. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 10/23/2019)
MINUTE ORDER setting Motion Hearing on 24 Motion for Preliminary Injunction for 12/23/2019 at 02:30 PM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 10/24/2019. (JAG) (Entered: 10/24/2019)
34 NOTICE of Appearance by Amber Richer on behalf of WILLIAM P. BARR (Richer, Amber) (Main Document 34 replaced on 10/29/2019) (zjf). (Entered: 10/29/2019)
35 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILLIAM P. BARR (This document is SEALED

12/11/2019 12/11/2019
12/11/2019 12/12/2019 12/13/2019 12/13/2019 12/16/2019

and only available to authorized persons.) (Attachments: # 1 Exhibit Proposed Status Report, # 2 Text of Proposed Order)(Tomlinson, Martin) (Entered: 12/10/2019)
MINUTE ORDER granting 35 Sealed Motion for Leave to File Document Under Seal. Signed by Judge Ketanji Brown Jackson on 12/11/2019. (jag) (Entered: 12/11/2019)
MINUTE ORDER TO SHOW CAUSE why Plaintiffs' 24 Motion for a Preliminary Injunction should not be summarily denied or stayed in light of the circumstances indicated in Defendant's Status Report. Any party who feels that the circumstances related in Defendants Status Report have no bearing on the Court's ability to afford the relief requested in Plaintiffs' 24 Motion shall explain why not, in a brief of no more than 10 pages, to be filed on or before Friday, 12/13/2019, at 5:00 PM. Any response to such brief shall be filed on or before Monday, 12/16/2019, at 5:00 PM, and shall likewise be no more than 10 pages in length. Signed by Judge Ketanji Brown Jackson on 12/11/2019. (jag) (Entered: 12/11/2019)
36 SEALED DOCUMENT filed by WILLIAM P. BARR(This document is SEALED and only available to authorized persons.)(Tomlinson, Martin) (Entered: 12/11/2019)
37 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ALL PLAINTIFFS (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Supplement Brief in Support of Preliminary Injunction, # 2 Declaration of Wesley, # 3 Declaration of Shaffer, # 4 Text of Proposed Order)(Webber, Christine) (Entered: 12/12/2019)
MINUTE ORDER granting 37 Sealed Motion for Leave to File Document Under Seal. Signed by Judge Ketanji Brown Jackson on 12/13/2019. (jag) (Entered: 12/13/2019)
38 SEALED DOCUMENT filed by ALL PLAINTIFFS(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration Wesley, # 2 Declaration Shaffer, # 3 Text of Proposed Order)(Webber, Christine) (Entered: 12/13/2019)
39 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILLIAM P. BARR (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Proposed Supplemental Brief, # 2 Exhibit Proposed Exhibit A to Supplemental Brief, # 3 Exhibit Proposed Exhibit B to

12/19/2019 12/19/2019 12/23/2019 12/23/2019 12/26/2019
12/30/2019 01/31/2020 01/31/2020

Supplemental Brief, # 4 Text of Proposed Order Proposed Order)(Tomlinson, Martin) (Entered: 12/16/2019)
MINUTE ORDER granting 39 Sealed Motion for Leave to File Document Under Seal. Signed by Judge Ketanji Brown Jackson on 12/19/2019. (jag) (Entered: 12/19/2019)
40 SEALED SUPPLEMENTAL BRIEF filed by WILLIAM P. BARR re 38 Sealed Document (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Exhibit A - Declaration, # 2 Exhibit Exhibit B - Policy)(Tomlinson, Martin) (Entered: 12/19/2019)
41 Joint MOTION for Scheduling Order by ALL PLAINTIFFS (Webber, Christine) (Entered: 12/23/2019)
Minute Entry for Motion Hearing proceedings held on 12/23/2019, before Judge Ketanji Brown Jackson re 24 MOTION for Preliminary Injunction for Protection. Oral arguments heard and motion taken under advisement. (Court Reporter: Sara Wick) (zgdf) (Entered: 12/23/2019)
MINUTE ORDER granting 41 Joint Motion for Scheduling Order. It is hereby ORDERED that Plaintiffs shall file their second amended complaint on or before 1/31/2020, and that Defendant shall answer or otherwise respond to the second amended complaint on or before 3/2/2020. It is FURTHER ORDERED that the deadline for Plaintiffs to file their motion for class certification, and for the parties to exchange Rule 26(a) Initial Disclosures, is STAYED until further Order of this Court. In addition, for good cause shown, the Court will delay issuance of any scheduling order in this matter until further Order. Signed by Judge Ketanji Brown Jackson on 12/26/2019. (jag) (Entered: 12/26/2019)
Set/Reset Deadlines: Answer due by 3/2/2020. (zgdf) (Entered: 12/30/2019)
42 AMENDED COMPLAINT (Second) against All Defendants with Jury Demand filed by ALL PLAINTIFFS, T. S.. (Attachments: # 1 Exhibit Redlined 2nd Amended Complaint)(Webber, Christine) (Entered: 01/31/2020)
43 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ALL PLAINTIFFS (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Supplement Cover Motion for Leave, # 2 Memorandum in

01/31/2020 02/14/2020 03/02/2020
03/03/2020 03/03/2020 03/06/2020 03/13/2020

Support, # 3 Declaration, # 4 Text of Proposed Order)(Webber, Christine) (Entered: 01/31/2020)
58 SEALED MOTION FOR LEAVE FOR ADDITIONAL PLAINTIFF TO PROCEEDUNDER A PSEUDONYM filed by ALL PLAINTIFFS. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Declaration)(zjf) (Entered: 10/14/2020)
44 RESPONSE re 43 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ALL PLAINTIFFS (This document is SEALED and only available to authorized persons.) filed by WILLIAM P. BARR. (Richer, Amber) (Entered: 02/14/2020)
45 Partial MOTION to Dismiss Second Amended Complaint, Partial MOTION to Dismiss for Lack of Jurisdiction Second Amended Complaint by WILLIAM P. BARR (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Index of Exhibits, # 4 Exhibit Rose Final Agency Decision, # 5 Exhibit L.S. Final Agency Decision)(Tomlinson, Martin) (Entered: 03/02/2020)
NOTICE OF ERROR re 45 Motion to Dismiss; emailed to martin.m.tomlinson@usdoj.gov, cc'd 8 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. Login/Password must match signature page(s). Counsel must file an Errata and as an attachment the Signature Page(s). (zjf, ) (Entered: 03/03/2020)
46 NOTICE of Errata and Filing of Corrected Signature Pages by WILLIAM P. BARR re 45 Partial MOTION to Dismiss Second Amended ComplaintPartial MOTION to Dismiss for Lack of Jurisdiction Second Amended Complaint (Attachments: # 1 Errata Corrected Signature Pages)(Tomlinson, Martin) (Entered: 03/03/2020)
47 Joint MOTION for Extension of Time to Complete Briefing on Defendant's Motion to Dismiss by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Webber, Christine) (Entered: 03/06/2020)
MINUTE ORDER granting, for good cause shown, 47 Joint Motion for Extension of Time to file responses and replies re 45 Partial Motion to Dismiss. It is hereby ORDERED that Plaintiffs shall file their response to the motion to dismiss on or before 3/23/2020, and Defendant shall file any reply on or before 4/6/2020. Signed by

Judge Ketanji Brown Jackson on 3/13/2020. (jag) (Entered: 03/13/2020)

03/16/2020

48 NOTICE of Filing Third Amended Complaint by ALL PLAINTIFFS (Attachments: # 1 Exhibit 3rd Amended Complaint, # 2 Exhibit Redlined Complaint)(Webber, Christine) (Entered: 03/16/2020)

03/16/2020 49

AMENDED COMPLAINT Third against All Defendants with Jury Demand filed by ALL PLAINTIFFS.(Webber, Christine) (Entered: 03/16/2020)

03/16/2020

50 Joint MOTION for Briefing Schedule by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Webber, Christine) (Entered: 03/16/2020)

03/18/2020

MINUTE ORDER DENYING AS MOOT 45 Motion to Dismiss and GRANTING 50 Motion for Briefing Schedule. It is hereby ORDERED that Defendant shall respond to the Third Amended Complaint on or before 4/6/2020. Signed by Judge Ketanji Brown Jackson on 3/18/2020. (jag) (Entered: 03/18/2020)

04/06/2020 51

Partial MOTION to Dismiss Third Amended Complaint, Partial MOTION to Dismiss for Lack of Jurisdiction Third Amended Complaint by WILLIAM P. BARR (Attachments: # 1

Memorandum in Support Memorandum of Points and Authorities, # 2 Exhibit Index of Exhibits, # 3 Exhibit Exhibit 1 Final Agency Decision Rose, # 4 Exhibit Exhibit 2 Final Agency Decision L.S., # 5 Text of Proposed Order, # 6 Certificate of Service)(Richer, Amber) (Entered: 04/06/2020)

04/20/2020

52 RESPONSE re 51 Partial MOTION to Dismiss Third Amended ComplaintPartial MOTION to Dismiss for Lack of Jurisdiction Third Amended Complaint filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order)(Webber, Christine) (Entered: 04/20/2020)

04/22/2020

53 Consent MOTION for Extension of Time to File Response/Reply as

to 51 Partial MOTION to Dismiss Third Amended ComplaintPartial MOTION to Dismiss for Lack of Jurisdiction Third Amended Complaint by WILLIAM P. BARR (Attachments: # 1 Text of Proposed Order)(Tomlinson, Martin) (Entered: 04/22/2020)

04/28/2020

MINUTE ORDER granting 53 Consent Motion for Extension of

Time to File Reply re 51 Partial Motion to Dismiss Third Amended Complaint, nunc pro tunc. It is hereby ORDERED that

Defendant's response re 51 is due on or before 5/4/2020. Signed by Judge Ketanji Brown Jackson on 4/28/2020. (jag) Modified on 4/28/2020 (jag). (Entered: 04/28/2020)

05/04/2020

54 REPLY to opposition to motion re 51 Partial MOTION to Dismiss Third Amended ComplaintPartial MOTION to Dismiss for Lack of Jurisdiction Third Amended Complaint filed by WILLIAM P. BARR. (Richer, Amber) (Entered: 05/04/2020)

07/23/2020 55

MEMORANDUM OPINION DENYING Plaintiffs' 24 Motion for Preliminary Injunction for Protection from Retaliation. Signed by Judge Ketanji Brown Jackson on 7/23/2020. (jag) (Entered: 07/23/2020)

07/23/2020

56 ORDER DENYING Plaintiffs' 24 Motion for Preliminary Injunction for Protection from Retaliation. Signed by Judge Ketanji Brown Jackson on 7/23/2020. (jag) (Entered: 07/23/2020)

10/07/2020

MINUTE ORDER granting 43 Sealed Motion for Leave to File Document Under Seal. Signed by Judge Ketanji Brown Jackson on 10/7/2020. (jag) (Entered: 10/07/2020)

10/07/2020

57 SEALED Declaration re 42 Second Amended Complaint filed by ALL PLAINTIFFS. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 10/10/2020)

10/14/2020

59 ORDER granting 58 Sealed Motion or Leave for Additional Plaintiff to Proceed Under a Pseudonym. Signed by Judge Ketanji Brown Jackson on 10/14/2020. (jag) (Entered: 10/14/2020)

10/14/2020

60 SEALED Declaration filed by ALL PLAINTIFFS. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 10/15/2020)

PACER Service Center Transaction Receipt
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1:19-cv-01581KBJ 1.70

 
 Case 1:19-cv-01581 Document 1 Filed 05/29/19 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Paula Bird, Clare Coetzer, Lauren Rose, )

Danielle Snider, Erika Wesley, “B.A.”, )

“D.A.”, “S.B.”, “D.C.”, “P.E.”, “B.G.”, )

“L.M.”,“W.M.”, “C.S.”, “L.S.”, “G.T.”, )

)

Plaintiffs, on behalf of themselves

)

And a class of those similarly situated

)

)

v.

)

)

William Barr

)

U.S. Department of Justice

)

950 Pennsylvania Avenue, NW

)

Washington, D.C. 20530-0001

)

Attorney General of the United States,

)

named in his official Capacity, and

)

head of the Department of Justice,

)

)

Defendant.

)

____________________________________)

No. 1:19-CV-1581 JURY DEMANDED

CLASS COMPLAINT FOR VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AMERICANS WITH DISABILITIES ACT, AND REHABILITATION ACT

COME NOW, the Plaintiffs, Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, Erika Wesley, “B.A.”, “D.A.”, “S.B.”, D.C.”, “P.E.”, “B.G.”, “L.M.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, individually and on behalf of a class of others similarly situated, for their complaint, allege as follows:
NATURE OF ACTION
1. Plaintiffs bring this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the Americans with Disabilities Act 104 Stat. 328 (1990), as amended and the Rehabilitation Act of 1973 29 U.S.C. § 701 et seq.; Plaintiffs bring this action

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individually and on behalf of a class of female New Agent Trainees (Job Series 1811) and Intelligence Analyst trainees (Job Series 0132) at the FBI’s Training Academy in Quantico, Virginia who have been sexually harassed, subjected to a hostile work environment, and outdated gender stereotypes, terminated, constructively discharged, forced to resign under pressure or who perceived that continuing in the training would be a futile gesture, suffered retaliation, and/or suffered other types of harassment in whole or in part because of their gender since April 10, 2015. In many cases, the harassment and discrimination take the form of gender-plus discrimination in that women of color or who have disabilities are excessively singled out for adverse treatment. Those female trainees who were offered other FBI employment were forced to take positions several grades lower than their previous grade or experience justified.
JURISDICTION AND VENUE
2. Jurisdiction is proper in this court in that the district courts have original jurisdiction over Title VII, ADA and Rehabilitation Act claims under 28 U.S.C. § 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3), because they arise under the laws of the United States and are brought to recover damages for deprivation of civil rights.
3. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3), that the defendant’s headquarters is located in this district, the personnel records relevant to this case are in this district, and the personnel practices challenged herein were directed or supervised by defendants in this district.
4. Plaintiffs have exhausted their administrative remedies prior to bringing this suit in that each plaintiff has filed timely charges of discrimination and filed a class complaint before the Equal Employment Commission on October 23, 2018. More than 180 days have passed since the filing of the class complaint and the EEOC has taken no action on this case since that filing.
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PARTIES
5. Defendant William Barr is the Attorney General of the United States, and is sued herein in his official capacity as head of the Federal Bureau of Investigation.
6. Plaintiff Paula Bird, an Asian female, is a resident of the state of Florida, and is currently employed by the FBI as an Operational Support Technician. She was discharged from the FBI Academy as a New Agent Trainee [hereinafter “NAT”] on May 1, 2018, gave first notice of discrimination to the EEOC on May 10, 2018, and filed a timely charge of discrimination on May 29, 2018.
7. Plaintiff Clare Coetzer, a Caucasian female, is a resident of the state of Washington, and is currently employed as a clinical social worker at an in-patient medical and psychiatric unit in the greater Seattle-Tacoma area. She was discharged from the FBI Academy as a NAT on June 29, 2018, gave first notice of discrimination to the EEOC on August 7, 2018, and filed a timely charge of discrimination on September 17, 2018.
8. Plaintiff Lauren Rose, a Hispanic female, is a resident of the state of Florida, and is currently employed by the FBI. She was discharged from the FBI Academy as a NAT on May 20, 2015, gave first notice of discrimination to the EEOC on June 1, 2015, and filed timely charges of discrimination on August 3, 2015 and December 10, 2018.
9. Plaintiff Danielle Snider, a Hispanic female, is a resident of Washington, D.C. She was discharged from the FBI Academy as a NAT on January 31, 2018, gave first notice of discrimination to the EEOC on February 8, 2018, and filed a timely charge of discrimination on February 10, 2018.
10. Plaintiff Erika Wesley, a Caucasian and Native American female with a disability, is a resident of the state of Arizona. During her training to become an IA she was deprived of
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approved reasonable accommodations, sexually harassed, and publicly humiliated for her disability, beginning in January 2018. She gave first notice of discrimination to the EEOC on February 8, 2018, and filed a timely charge of discrimination on May 18, 2018.
11. Plaintiff “B.A.” is a Hispanic female. She was discharged from the FBI Academy as a New Intelligence Analyst Trainee [hereinafter “NIAT”] on July 31, 2018, gave first notice of discrimination to the EEOC on November 26, 2018, and filed a timely charge of discrimination on December 13, 2018.
12. Plaintiff “D.A.”, an African-American female, is a resident of the state of Maryland, and is currently employed by the FBI. She was discharged from the FBI Academy as a NAT on June 29, 2018, gave first notice of discrimination to the EEOC on July 2, 2018, and filed a timely charge of discrimination on September 21, 2018.
13. Plaintiff “S.B.”, a Caucasian female, is a resident of the state of Maryland, and is currently employed by the FBI. She was discharged from the FBI Academy as a NAT on September 20, 2017, gave first notice of discrimination to the EEOC on February 13, 2018, and filed a timely charge of discrimination on March 12, 2018.
14. Plaintiff “D.C.”, a Caucasian female, is a resident of the Commonwealth of Virginia, and is currently employed by the FBI. She was discharged from the FBI Academy as a NAT on February 1, 2018, gave first notice of discrimination to the EEOC on March 2, 2018, and filed a timely charge of discrimination on April 5, 2018.
15. Plaintiff “P.E.” a Hispanic female, is a resident of the state of New York. She was dismissed from the FBI Academy as a NAT on October 25, 2016, gave first notice of
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discrimination to the EEOC on April 24, 2019, and formally filed a charge of discrimination on April 24, 2019.
16. Plaintiff “B.G.”, a Hispanic female, is a resident of the state of New York, and is currently employed by the FBI. She was discharged from the FBI Academy as a NAT on October 24, 2018, gave first notice of discrimination to the EEOC on October 31, 2018, and filed a timely charge of discrimination on November 28, 2018.
17. Plaintiff “L.M.”, a mixed-race female with a disability, is a resident of the state of Florida. She was discharged from the FBI Academy as a NIAT on March 9, 2018, gave first notice of discrimination to the EEOC on February 9, 2018 (prior to her dismissal), and filed a timely charge of discrimination on February 14, 2018.
18. Plaintiff “W.M.”, a Caucasian female, is a resident of the state of North Carolina, and is currently employed by the FBI. She was dismissed from the FBI Academy as a NAT on June 29, 2018, gave first notice of discrimination to the EEOC on July 17, 2018, and filed a timely charge of discrimination on August 10, 2018.
19. Plaintiff “C.S.”, a Caucasian female, is a resident of the state of Arizona, and, gave first notice of discrimination to the EEOC on December 3, 2018, and filed a timely charge of discrimination on February 6, 2019.
20. Plaintiff “L.S.”, a Caucasian female, is a resident of the state of California. She was dismissed from the FBI Academy as a NAT on October 2, 2015, and filed timely charges of discrimination on January 16, 2016 and May 8, 2019.
21. Plaintiff “G.T.”, a Caucasian female, is a resident of the Commonwealth of Virginia. She was discharged from the FBI Academy as a NAT on February 1, 2018, gave first
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notice of discrimination to the EEOC on February 14, 2018, and filed a timely charge of discrimination on March 15, 2018.
FACTUAL BACKGROUND I. BACKGROUND ON THE FBI’S TRAINING ACADEMY
22. NATs and NIATs begin their training at the FBI Academy in the Basic Field Training Course [hereinafter “BFTC”]. The BFTC is designed to integrate students in the twenty (20) week NAT course and the students in the twelve (12) week NIAT course where possible. During the first approximately six (6) to eight (8) weeks, NATs and NIATs attend academic courses together, including curriculum covering the law, interviewing and report writing, investigative authorities and techniques, human intelligence, etc. Thereafter, NIATs continue with additional academic and intelligence curriculum, while NATs concentrate on law enforcement skills, to include defensive tactics, firearms, physical training, and operational skills.
23. Per the BFTC Requirements Document, each Trainee is to be evaluated on the necessary basic proficiencies in specialized knowledge, skills, and abilities needed to perform their assigned duties in both an individual and team environment. Additionally, per the BFTC Requirements Document, each Trainee is to be assessed on six (6) suitability dimensions: conscientiousness, cooperativeness, emotional maturity, initiative, integrity, and judgment.
24. These six (6) suitability dimensions are defined and specific examples of suitable and unsuitable behavior are described in the BFTC Requirements Document as follows:
A. Conscientiousness 1. Conscientiousness includes behavior that is
dependable, responsible, organized, careful, and thoughtful, with a great attention to detail and follow-through. It is the ability to
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systematically plan, anticipate problems, and develop contingencies to avoid these problems.
2. Unsuitable behavior in this category includes excessively sloppy and careless work, being irresponsible when asked for something, losing important documents, materials, equipment, etc., and the failure to ask for assistance when appropriate and necessary.
3. Anticipation and assessment of problems as described in this category includes the ability to self-monitor and seek help in overcoming potential difficulties and obstacles.
B. Cooperativeness
1. Cooperativeness includes behavior that involves following the chain of command and being willing to collaborate with fellow classmates, instructors, and other individuals in the FBI; the Intelligence Community; other law enforcement agencies; and the government. It is closely associated with the ability to relate effectively with others and being sensitive to others’ needs.
2. Unsuitable behavior in this category includes being rude, antagonistic and/or impatient with instructors, fellow classmates, other FBI personnel; unnecessarily questioning the performance of fellow workers in front of others; being disrespectful to employees; and using abusive language. It also includes failure to communicate critical information to others.
C. Emotional Maturity
1. Emotional maturity includes behaviors that involve maintaining self-control and approaching potentially volatile situations, events, and people in a calm, professional manner. It is the ability to be flexible, adapt to changing situations, and remain level-headed and effective under stress. It is contrasted with behavior that is immature, irrational, and shows a lack of control over one’s behavior.
2. Unsuitable behavior includes reacting angrily or violently to comments made by individuals, acting inappropriately outside of work, (e.g., excessive drinking) using excessive force, or not reacting at all when it is appropriate to react. Unsuitable behavior also includes engaging in any form of harassment or discrimination. D. Initiative
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1. Initiative includes behavior that involves perseverance and dedication in performing the duties of the job, going above and beyond expectations to accomplish the job, making suggestions to improve work processes, performing duties without having to be told, and a willingness to put in long hours the job requires.
2. This is correlated with motivation and includes exhibiting a commendable work ethic. It can be contrasted with behavior that involves failing to do what it takes to perform the job successfully because of laziness or lack of interest.
3. Unsuitable behavior in this category includes refusing to put in additional time during training, failing to follow through with others because of inconvenience, and deliberately wasting time by taking a number of breaks while on duty.

E.

Integrity

1. Integrity includes behavior that shows the person to be honest, trustworthy, disciplined, and respectful of laws and regulations; behaviors that display high standards of ethical conduct, and actions that are taken without jeopardizing or compromising these standards, even when there are no ramifications for not doing so. Behaviors involve following agency policy and the letter and spirit of the law, and avoiding even the appearance of impropriety.

2. This is related to a person’s professionalism, ability to maintain a positive image, ability to serve as a role model and represent the FBI positively to others. It can be contrasted with behavior that involves breaking the law and deviating from agency policy.

3.

Unsuitable behavior in this category includes

accepting favors and gratuities, showing favoritism to friends or

relatives, failing to report conflict of interest situations, lying,

cheating, stealing (e.g., voucher fraud), lack of candor, failure to

cooperate in an administrative inquiry, abuse of sick leave, and

using government property for inappropriate personal reasons.

F. Judgment

1. Judgment includes the ability to evaluate information, think critically, question assumptions, discern merits and deficiencies in logic, and self-assess one’s own skills. Behaviors

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indicate the ability to decide on and commit to a responsible course of action, as well as the ability to accept constructive criticism and evaluate it appropriately.
2. Unsuitable behavior in this category includes taking actions without thinking of the consequences, acting in a way that jeopardizes the reputation of the office and/or the FBI, or adamantly denying feedback on performance and refusing to improve one’s deficiencies noted by a superior. 25. Throughout the entirety of the BFTC, Trainees are continuously evaluated by staff and instructors to determine if they are demonstrating an acceptable level of proficiency in job related skills and are suitable to assume the duties of their position, as set forth in the BFTC Requirements Document. When an instructor feels that a Trainee has failed to demonstrate an acceptable level of proficiency in any job-related skill or has failed to maintain required suitability standards, the instructor will notate said failure in a Suitability Notation [hereinafter “SN”]. Id. Upon receipt of the SN, Trainees are required to sign the SN as an acknowledgment of its receipt. The Requirements Document does not articulate how many SNs result in the recommendation for dismissal, which results in a lack of uniformity in how SNs are used to determine who is dismissed and who may be allowed to graduate. 26. Tactical Training is different from other BFTC blocks for several reasons. First, NATs are simultaneously trained and evaluated in new competencies. This does not occur in any other segment of New Agents’ Training. In firearms, defensive tactics, and academics, a significant amount of training is provided before NATs are assessed and evaluated. In the other blocks of training, NATs have a clear transition from training to evaluation, with proficiency being tested on a clearly articulated date, with a clearly articulated criteria for passing. 27. Additionally, SNs stemming from errors made at the Tactical Training Unit [hereinafter “TTU”] are not issued uniformly, which creates a lack of equality amongst trainees.
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For example, “Don’t Shoot” scenarios in which different groups of NATs apply the exact same measure of deadly force are routinely met with different criticisms, and more importantly, different consequences. Some NATs receive SNs, some receive Tactical Feedback, and some receive no consequences whatsoever. In some instances, the issuance of a subjective SN from TTU makes the difference between trainees graduating on time and others being dismissed.
28. Finally, NATs are not allowed to practice tactical scenarios at Hogan’s Alley after hours, which prohibits NATs from taking the initiative to improve skills outside of formal instruction. Whereas a NAT who requires additional firearms practice is offered remediation, a NAT who makes a mistake during tactical training – even during the very first instructional block of tactical training – is offered no option for remediation. This creates a training environment that is adverse to learning, and instead, encourages trainees to avoid consequences instead of developing skills.
29. Although the foregoing suitability dimensions appear neutral on their face, in practice, the suitability dimensions are often, and easily, used as pretext to induce failure in female trainees. Observation of suitability dimensions is highly subjective, and the uneven power dynamic at the FBI Academy puts female trainees at a distinct disadvantage. This subjectivity permits instructors to induce failure by misrepresenting scenarios, and create the appearance of a deficiency at will. For example, female trainees are admonished for lacking integrity and/or emotional maturity when they attempt to defend decisions made or actions taken found to be unfavorable with an instructor. However, when male trainees do the same, they are praised for having a “command presence.” Further, female trainees are excessively targeted for correction and dismissal in tactical situations for perceived lack of judgment. Any tactical error can, and in the case of female trainees, is often characterized as an error in judgment and results in the issuance
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of an SN. In contrast, male trainees who engage in identical or similar actions and behaviors are not issued SNs.
30. If the Training Management Unit [hereinafter “TMU”] determines that any NAT or NIAT is deficient in some aspect of their respective training, TMU initiates a Suitability Review, during which the Training Division determines if the trainee should appear before the Trainee Review Board [hereinafter “TRB”]. The TRB is convened by the Training Division Deputy Assistant Director [hereinafter “DAD”] and consists of the following individuals: the DAD who serves as chair and voting member; three Training Division Section Chiefs, who serve as board members; an Office of General Counsel [hereinafter “OGC”] representative, who serves as legal advisor; the TMU Unit Chief, who serves as a board member; and one minority representative at the GS-15 level, who serves as a board member. The DAD determines the attendees of the TRB, which may or may not include the trainee’s classmates, instructors, the TMU Unit Chief, TMU supervisor(s) and counselor(s), and any other individuals the DAD deems relevant. The trainee is given an opportunity to appear before the board and provide a complete statement for the record, but does not have the opportunity to hear the statements of witnesses brought before the board, nor does the trainee have any opportunity to present witnesses on her behalf. While TMU has the benefit of legal representation from the Office of General Counsel present at the TRB, trainees before the TRB are not afforded with the opportunity to have legal counsel or any other representative present, further highlighting the uneven power dynamic. TRBs are neither independent nor fair, depriving trainees of fundamental procedural safeguards. This results in a fundamental denial of due process, since the TRB is, in reality, conducting a hearing on the trainee’s termination without the opportunity to confront witnesses against them, to be represented by counsel or an advocate, lack of notice of the underlying allegations prior to the hearing, and the
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denial of a fair and impartial decisionmaker, all in violation of the stated procedures for the TRB, further demonstrating that these facially neutral policies are, in fact, a pretext for discrimination. II. THE UNLAWFUL EMPLOYMENT PRACTICES
31. The FBI’s Training Division has a number of unlawful employment practices that have an adverse impact upon female trainees.
32. The entire training process is highly subjective and subversive of the purpose of a training academy. Instead of training NATs and NIATs for their jobs, the FBI Academy’s purpose has been perverted into one of eliminating trainees who do not fit an arbitrarily subjective mold the FBI’s Training Division believes necessary for a Special Agent or Intelligence Analyst, in direct contrast to stated FBI hiring policies and guidance.
33. Through passive tolerance, the FBI has intentionally allowed the Good Old Boy Network to flourish unrestrained at the FBI Academy. TTU instructors, almost exclusively male, are provided no objective guidance and allowed to target for dismissal any agent they choose. Because of the FBI’s history of tolerating the Good Old Boy Network, the subjective evaluations by these male instructors result in female trainees being written up and subsequently dismissed at a rate significantly and disproportionately higher than their male counterparts. Plaintiffs are informed and believe and thereon allege that only one female defensive tactics instructor has been on staff at the Academy since at least 2015.
34. The first manner in which the FBI targets female trainees for inequitable treatment is the implementation of the Training Division’s “Requirements Document.” This document, while setting forth the ethical standards for FBI NATs and NIATs required for successful graduation from the FBI Academy collectively known as “suitability standards,” is not in itself discriminatory on its face; it is the manner in which it is used that gives rise to the adverse impact of the document.
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When a student is deemed deficient in a certain area of performance, the student is issued an SN. The vague language used to define suitability standards such as candor, professionalism, emotional maturity, and insubordination, is unethically contorted to allow female trainees to aggregate SNs for minor training mistakes or fabricated incidents, and subsequently be deemed “unsuitable” as FBI agents or analysts.
35. Training Division instructors, supervisors, and field counselors are authorized to subjectively issue SNs to document trainee deficiencies. According to the aforementioned Requirements Document distributed at the beginning of training, certain trainee errors and deficiencies result in the issuance of a mandatory suitability notation, including errors such as pointing a weapon at a fellow agent. However, in practice, these mandatory citations are only mandatory when citing female trainees. Identical errors made by male trainees are regularly ignored and undocumented. Moreover, the subjective citations, resulting from vaguely defined standards such as “candor,” “insubordination,” and “lack of emotional maturity,” are disproportionately issued to female trainees. For example, any effort to seek clarification, or better understanding of course curriculum or training scenarios by female trainees consistently resulted in female trainees being labeled as “argumentative” and written up for “lack of candor.” Additionally, a significant portion of the SNs issued to female trainees are not for offenses which should even constitute a SN, but rather for mistakes which the official policy only prescribes instructors provide “tactical feedback.” Rather than allowing female trainees to learn from their mistakes, as outlined by FBI Training Division policy, they are unduly targeted for citations to facilitate their ultimate dismissal.
36. Training Division instructors, supervisors, and field counselors use sexual and gender-based stereotypes. For example, female trainees who demonstrated any sort of
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situationally appropriate emotion were cited for lacking “emotional maturity”; female trainees who attempted to address perceived bias within the chain of command were cited as "lacking professionalism"; female trainees who stood by their ethical duties prescribed in the Requirement Documents were cited as being "insubordinate"; female trainees who attempted to explain their actions after being asked by superiors to do so, were cited as “lacking accountability.” Where female trainees are cited for demonstrating these behaviors, male trainees are praised by the same instructors for demonstrating a “command presence.” Additionally, a number of female NATs received criticism for “not being aggressive enough” yet were ultimately dismissed for “being too aggressive.”
37. Training Division staff, including instructors, supervisors, field counselors, managers, and review board members, frequently dismiss mistakes made by male trainees as isolated incidents, determine male trainees to be retrainable, and retain them at the Academy at a disproportionately higher rate than their female trainee counterparts. When a female trainee makes the exact same mistake, the female trainee is considered to be prima facie tactically incompetent, and is subjectively determined to be unable to improve and unworthy of additional remedial training.
38. Female trainees are often pre-selected for unnecessary and inappropriate “special attention” by Training Division staff at the beginning of training and heavily scrutinized while male trainees, especially those with prior law enforcement and/or military experience, are allowed to operate with little to no supervision, as Training Division staff assume these male trainees know what they are doing. However, those with prior law enforcement or military experience often demonstrate tactical skills that are not in line with FBI policies and procedures.
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39. Female trainees are singled out in group tactical exercises because they are perceived as being weak and prone to failure. By singling out female trainees, they are put in situations far more frequently that result in suitability notations.
40. The TRB operates without objectivity and violates established policies when evaluating female trainees for dismissal. The review process requires that trainees be informed why they received SNs and be given a chance to respond. However, female trainees are often ambushed with newly issued Suitability Notations at their TRBs, and are not given appropriate notice or time to prepare.
41. Male trainees are provided multiple avenues for success, in spite of their errors. Male trainees are often permitted to retake tactical exams when female trainees are denied the same opportunity to do so. Male trainees brought before the review board are statistically far more likely to be retained or recycled than female trainees, who are almost always recommended for dismissal.
42. Female trainees are not given the opportunity to review or contest all of their SNs before their review board because they are provided with them at the same time as the Board, in violation of the Board’s procedures.
43. TMU management and instructors actively seek out derogatory information, or “gossip,” about female trainees from other instructors and counselors in order to levy additional SNs against female trainees. However, readily observed violations of the Requirements Document committed by males are ignored.
44. Female trainees are subjected to a hostile work environment, pervasive sexual harassment and sexual jokes made by numerous members of Training Division instructors, managers and field counselors, including harassment about pregnancy, false allegations of infidelity, use of birth control, physical appearance, manner of dress, parental status, and refusal
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to train certain skills because of a female trainee’s breast size. 45. The FBI’s internal Equal Employment Office [hereinafter “EEO”] fails to
demonstrate due diligence as required by law to investigate the claims made by female trainees. Female trainees’ claims are almost never investigated within the required time frames, and the internal EEO staff consistently depend on extensions to perform even minimal inquiry. EEO investigators fail to interview direct witnesses to claims made by female trainees, and conclusions are made without good faith effort. The Responsible Management Officials (RMOs) who are alleged to have engaged in discriminatory conduct are not required to respond to the inquiries from EEO staff, and no investigation into or disciplinary proceedings are initiated against RMOs who are alleged to have engaged in sexual harassment or discrimination. Moreover, female trainees are subjected to intense retaliation for bringing EEO protected activity to the attention of Training Division management.
46. Training Division management, particularly Unit Chief Kellie Holland, engaged in retaliation against female trainees who appropriately advocated for themselves and others when subjected to discriminatory actions by Training Division staff. Retaliatory actions taken against female trainees include issuing additional SNs in direct violation of Training Division policy and the FBI Core Values; intentional interference of female trainees’ efforts to improve and succeed; precluding female trainees from taking exams required for graduation; singling female trainees out for additional and unwarranted scrutiny; publicly disparaging female trainees; and intimidating female trainees.
47. Training Division instructors, managers and field counselors consistently lack candor, embellish, fabricate, and/or exaggerate the characterization of the female trainees’ behavior when issuing SNs to intentionally misconstrue the alleged offending behavior in a more
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egregious manner. Training Division management also coerce female trainees to sign the SNs, and threaten them with additional adverse action if they are unwilling to do so. Upon termination, the FBI’s practice is to misinform the NATs and IAs that there is no appeal or challenge possible to the decision, and terminated employees are not informed, however, that they may challenge the action under Title VII, affirmatively misleading the terminated employee about their civil rights.
CLASS ALLEGATIONS 48. This case meets the class requirements of Fed. R. Civ. P. 23(b)(1), (b) (and (b)(3) and 28 C.F.R. 1614.204(b), in that:
a. the class is so numerous that joinder of all members is impracticable; b. there are questions of law or fact common to the class; c. the claims or defenses of the representative parties are typical of the claims
or defenses of the class; and d. the representative parties will fairly and adequately protect the interests of
the class. 49. Plaintiffs are informed and believe that over 100 potential members of the class exist that were subjected to sexual harassment, hostile work environment, outdated gender stereotypes, terminated or left training because of their gender, which is magnified when the trainee is a woman of color or has a disability, and were isolated and subjected to excess scrutiny by the almost exclusively male training instructors. 50. The members of the class were all subjected to the common practices set forth below, were in the same classes, were evaluated and dismissed by the same group of largely male
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training agents, and were brought before the same Trainee Review Board through the use of suitability notations, denoting they were “unsuitable” for employment as a Special Agent or Intelligence Analyst. They were subjected to similar harassment because of their gender and, for those who were retained by the Bureau, were placed in grades lower than their previous employment and qualifications.
51. The claims of each Plaintiff are typical of the claims of the members of the class because each was subjected to the same subjective evaluation procedures, were more frequently written up than their male counterparts and were dismissed by review boards using the same subjective practices. Each was exposed to similar harassment and isolation and were subject to the same gender stereotypes and harassment.
52. The representatives of the class will adequately represent the members of the class because they have received a grant for attorney’s fees and expenses from the Time’s Up Legal Defense Fund of the National Women’s Law Center, and are capable of funding any other expense of this case, have all indicated their dedication to eradicating the discriminatory practices by filing individual EEO complaints, and they have retained experienced class action counsel who has experience in litigating class actions against the FBI and other law enforcement agencies.
THE PLAINTIFFS’ CLAIMS MEET THE REQUIRMENTS OF FRCP 23 I. PAULA BIRD
53. Plaintiff Paula Bird, an Asian female, graduated high school at the age of fifteen (15). She went on to graduate summa cum laude from the University of Central Florida at the age of nineteen (19), with a Bachelor of Science in Psychology and a Certificate in Behavioral Forensics. While she was at the University of Central Florida, Ms. Bird interned over the summer with the FBI in Washington, D.C. She subsequently continued her internship with the FBI in the
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Maitland Resident Agency of the Tampa Division for a year prior to attending law school. At twenty-two (22), Ms. Bird graduated in the top 10% of her class from Barry University Dwayne O’Andreas School of Law, where she served as an editor of the Law Review and was specially selected to be published by the Law Review. Thereafter, Ms. Bird practiced law for over six (6) years prior to attending BFTC 18-01 as a NAT.
54. Despite having successfully passed the Physical Fitness Test (PFT), all academic tests, the pistol and carbine qualifications, the defensive tactics test, and other performance tests and evaluations, she was dismissed three (3) weeks before graduation on May 1, 2018, after being brought before the TRB. Ms. Bird was given seven (7) SNs, all of which were from the Tactical Training Unit. Of the seven (7) SNs, four (4) were for tactical mistakes and three (3) were wholly unrelated to tactical performance. There were at least three (3) instances where Ms. Bird received a SN regarding a tactical mistake for acting in the same manner as other NATs in her section who did not receive a SN. For example, Ms. Bird was issued a SN from the former TTU UC, Randal Glass,1 for applying deadly force to a paper target holding a firearm during a training exercise because neither she, nor her male partner, had a flashlight out. Ms. Bird and her partner had been told that for the purpose of the scenario they had already “knocked and announced” (i.e. official knock followed by “FBI. Search Warrant. Open up.”). UC Glass specifically selected Ms. Bird to be no. 1, meaning that she would be responsible for first entry. When Ms. Bird’s partner opened the door, she and her partner discovered that the room did not have its lights turned on. Relying on the ambient lighting from the area outside the room, Ms. Bird observed the paper target standing in a shooting position with both hands out holding what she correctly perceived to be a gun. UC
1 UC Glass, who was responsible for recommending NATs for dismissal to the TRB, was subsequently removed from TTU and assigned to the Defensive Systems Unit (DSU) – a unit having little to no contact with trainees – in September 2018.
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Glass chastised Ms. Bird (but not her male partner) for not using a flashlight before entering the room and stated that “for all [she] knew, the paper target could have been holding a remote control.” At least one male NAT made the same “mistake” in front of UC Glass during the same exercise on the same day and was not issued a SN.
55. Additionally, after receiving a SN from UC Glass containing false and misleading allegations, Ms. Bird spoke to one of her class counselors to inquire as to whether she could contest the SN. Ms. Bird was advised that although she could draft an electronic communication (EC) regarding the matter, it would be best if she refrained from doing so given the high level of scrutiny she was already under at TTU.
56. Of the three NATs sent before the TRB from her section, Ms. Bird and another Asian female NAT were dismissed without being allowed to take the tactics test, while the male NAT was permitted to take the test and graduate. The male NAT who was permitted to graduate was later told by their supervisor, Supervisory Special Agent [hereinafter “SSA”] Christopher Neuguth, that he was only sent to the TRB because the board was concerned that it would appear that the Academy was targeting females if they did not have at least one male NAT appear before the TRB. The male NAT was never in danger of being dismissed and was only required to appear in front of the TRB in order to create a false appearance of fairness.
57. Ms. Bird was not offered any sort of remedial tactical training, as is the standard with other units in the BFTC curriculum. Additionally, prior to her dismissal, Ms. Bird was advised that the Human Resources Department would offer her one support staff position (after reviewing her resume) which she could either accept or reject. Despite her credentials and experience, the only position offered to Ms. Bird was an entry-level Operational Support Technician which falls three (3) pay level grades below the Special Agent position.
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II. CLARE COETZER 58. Clare Coetzer, a Caucasian female, earned a Bachelor of Arts in Psychology and a
Master of Arts in Social Work by age 23. She went on to obtain a clinical license to practice independently. Ms. Coetzer successfully helped pilot a new program in Monterey County, CA where mental health professionals partnered with law enforcement in order to address mental health crises in the field. She currently works as a Licensed Clinical Social Worker in both a local emergency department and an inpatient psychiatric hospital for adolescents in the state of Washington. Ms. Coetzer was enrolled in BFTC 18-03. She successfully passed the PFT on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations.
59. Ms. Coetzer was brought before the TRB and dismissed, three (3) weeks prior to graduation, on June 29, 2018. Ms. Coetzer received a total of four (4) SNs for tactical deficiencies noted during tactical training scenarios. Two (2) SNs received by Ms. Coetzer on June 5, 2018, were for scenarios that the majority of the class failed. Ms. Coetzer voluntarily met with her primary tactical instructor [hereafter “PTI”], and asked for feedback on how to improve. Ms. Coetzer was told there was nothing she could do to improve. During this same meeting, Ms. Coetzer and her class counselor were both present when the PTI told a male classmate with four (4) SNs that he would “be fine” and “to keep working hard, and not worry about it.” Only minutes after, the same instructor told Ms. Coetzer that her four (4) SNs were “a lot” and that “people don’t typically graduate with four (4) SNs.” This same male classmate later failed his tactics exam twice; and instead of following protocol for an automatic dismissal from BFTC, the PTI recommended him for a TRB in an effort to retain him despite his failures.
60. On June 12, 2018, Ms. Coetzer overheard two (2) male colleagues question their
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SNs to the PTI and their SNs were rescinded. No such reconsideration was afforded to female trainees. If anything, questioning their SNs resulted in being issued additional SNs. Also, on June 12, 2018, despite receiving her two (2) final SNs, the only female TTU instructor told Ms. Coetzer that a drastic improvement in her performance had been noticed and she should keep up the good work. She also provided this feedback to the class counselor. Three other practical exercises followed, increasing in both difficulty and complexity, and Ms. Coetzer did not receive any more SNs, where others in the class did.
61. Four (4) of the nine (9) females in Alpha section were recommended by TTU for a TRB, whereas only two (2) of the thirty (30) males in her section were recommended by TTU for a TRB (only one of which actually had to appear before the TRB). Despite Ms. Coetzer’s demonstrated improvement, Ms. Coetzer was sent before the TRB, without a chance to take the tactics exam. Ms. Coetzer was not offered any sort of remedial tactical training, as is the standard with other units in the BFTC curriculum. III. LAUREN ROSE
62. Plaintiff Lauren Rose, a Hispanic female, graduated from Liberty University in 2007 with a Bachelor of Science in Psychology and Communications. Ms. Rose entered on duty with the FBI in September 2009 and held various professional staff positions with increasing responsibilities until she was given a New Agents Training class date. Ms. Rose was enrolled in the New Agents Training Program (hereinafter “NAC”] Class 15-03, BFTC’s predecessor, where she successfully completed all academic exams, the PFT, pistol and carbine firearms qualifications, and defensive tactics tests without incident. Ms. Rose received three (3) SNs for mistakes made during the Tactical Training portion of the curriculum, even though several male trainees made the same, and more egregious mistakes, but were not written up or counseled
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accordingly. Ms. Rose was dismissed from training just one week prior to graduation on May 20, 2015, after being brought before the TRB. When asked if she could be recycled, Ms. Rose was informed the Academy did not recycle for tactics. However, within that same fiscal year, another male trainee in NAC 14-02 had in fact been recycled for issues arising from the tactical portion of the training and was subsequently allowed to graduate. Despite being an employee of the FBI for nearly 6 years, Ms. Rose was forced to use 160 hours of annual leave before being reassigned.
63. On May 25, 2015, Ms. Rose wrote an email to then-Director James Comey informing him of the prejudicial and discriminatory practices running rampant at the FBI Academy. In his response, Director Comey denied such discrimination was occurring and instead suggested she use her “pain” to reflect on her strengths and weaknesses. On June 5, 2015, Ms. Rose sent letters to then-Assistant Directors Owen Harris (Training Division) and James Turgal (Human Resources Division) notifying them of the unequitable treatment of female trainees at the FBI Academy. No response was received. Ms. Rose filed a timely charge of discrimination on August 3, 2015. In her initial complaint, Ms. Rose named several members of Training Division’s Executive Management as RMOs, to include: Section Chief Catherine Fletcher, Section Chief James E. Jewell, Section Chief Zachary T. Lowe, Jr., and Deputy Assistant Director Mark A. Morgan. As DAD, Mr. Morgan facilitated and/or approved the exclusive dismissal of female new agent trainees for tactical suitability during fiscal year 2015. With respect to Ms. Rose specifically, Mr. Morgan stated that he took issue with her “attitude” during her oral presentation to the review board. However, Mr. Morgan provided no additional substantiation to support why he felt that way. It should be noted that despite Mr. Morgan’s description of Ms. Rose’s demeanor, Ms. Rose had an exemplary history of performance reviews prior her training at the Academy, and continues to receive excellent performance reviews after her removal from New Agents’ Training.
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Additionally, in her sworn statement, Section Chief Catherine Fletcher admitted that she was not a special agent, and therefore needed to ask the three male members of the review board if Ms. Rose could improve with additional training. Ms. Fletcher was in no way qualified to be a sufficient minority representative for Ms. Rose since she herself did not have an understanding or background in tactics and the application of deadly force. The three male special agents told Ms. Fletcher there was not enough time to train Ms. Rose, and Ms. Fletcher subsequently voted in solidarity with them, undermining any notional sense of independence a review board is supposed to offer a trainee.
64. On July 27, 2015, Ms. Rose applied for Reinstatement pursuant to FBI Special Agent Reinstatement Policy 0323D 8.8. Included in her request for reinstatement was notification of the uneven distribution of suitability notations. Although her request was formally taken under advisement, no decision was made.
65. On August 15, 2016, Ms. Rose again requested consideration for reinstatement via FBI Corporate policy by sending a formal letter to then-Assistant Director of Training Division David Resch. Even though Ms. Rose’s Reinstatement request was entirely independent of her EEO complaint, Mr. Resch notified Ms. Rose he was referring her file to the FBI’s Office of General Counsel and would let her know if he was in a position to discuss. No decision was ever made.
66. Ms. Rose has communicated with Human Resources Division and Training Division, in writing, several times over the course of more than three (3) years. Ms. Rose spoke on the telephone with Assistant Section Chief Ken Sena at HRD regarding her reinstatement. After first being told he had already responded to her reinstatement, and later realizing he in fact had not, he quickly provided another excuse, offering that he had recently spoken to Section Chief Jim Jewell at Training Division, who
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was denying her “appeal.” Ms. Rose explained again that she was not appealing a decision. She was applying for Reinstatement according HRD’s own policy. Mr. Sena then requested Ms. Rose email him, and cautioned her “it’s probably not going to go the way you want it.” Ms. Rose emailed Mr. Sena on July 19, 2018, and included information about the disparate treatment of female new agent trainees in her message. Mr. Sena never responded. On October 5, 2018, Ms. Rose was effectively denied her request for reinstatement by Training Division Counsel Amy Armstrong, contradicting 3 years of Ms. Armstrong’s own correspondence. Ms. Rose subsequently filed a timely charge of retaliation and discrimination on December 10, 2018. IV. DANIELLE SNIDER
67. Plaintiff Danielle Snider, a Hispanic female, is a graduate of the United States Air Force Academy where she received a Bachelor of Science degree in Behavioral Science and Arabic. She commissioned in the United States Air Force, where she served on active duty for four (4) years. Ms. Snider also received a full scholarship to pursue her Master of Arts from the University of Kansas in Political Psychology and African Studies. Ms. Snider is currently an Air Force Reserve Captain and serves in the prestigious ranks of the Defense Attaché Service. Immediately prior to starting at the FBI she worked at the National Counterterrorism Center (NCTC) as an Intelligence Analyst and is a graduate of the Central Intelligence Agency Sherman Kent Career Intelligence Analyst Course and honor graduate of the U.S. John F. Kennedy School of Special Warfare Psychological Operations Qualification Course.
68. Ms. Snider was enrolled in BFTC 17-05. She successfully passed the PFT on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, and other performance tests and evaluations. On January 31, 2018, Ms. Snider was brought before the TRB and dismissed two (2) weeks prior to graduation for failure to demonstrate tactical judgement
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during the tactical skills portion of her training. Ms. Snider was given a total of five (5) SNs for tactical deficiencies noted during tactical training scenarios. Only one of those SNs warranted an explicit SN according to the official rubric Ms. Snider received at the beginning of TTU instruction. Ms. Snider had no previous marks on her record during the BFTC, and was told by her SSA that she was in the top 25 out of her class of 150 students before being submitted to the TRB.
69. A total of six (6) NATs, five (5) female and one (1) male, were brought before the TRB for SNs at TTU. All five (5) females were dismissed. The errors made by the one male submitted to the review board were considered “so egregious,” and outside the norm of lawful law enforcement behavior, according to direct observations by other students and instructors, but he was ultimately the only student retained by the board and allowed to graduate. Several other male NATs had received an equal or greater number of SNs as the dismissed female NATs, but were not brought before the TRB and were allowed to graduate from the BFTC.
70. No offer of remedial training was provided to Ms. Snider because she and other females were told by the TRB that there was not enough time before graduation. However, when several male NATs failed the TTU final exam, they were given the opportunity for additional training and a retest less than two weeks before graduation. Ms. Snider noted that several males made the same mistakes that earned Ms. Snider her SNs for tactics, but for which they were not written up or given SNs. Ms. Snider is also aware of one male in her class that failed the PFT, an academic test, and the TTU test, who was not submitted a to review board and allowed to graduate after giving instructors what they deemed a satisfactory explanation for his failures. V. ERIKA WESLEY
71. Plaintiff Erika Wesley, a Native American and Caucasian female with disabilities, graduated from the College of William and Mary in just three (3) years with a Bachelor of Business
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Administration and a Minor in Sociology at the age of 20. Ms. Wesley served as the Student President of her Business School, sat on the Honor Council and worked in the College’s Equal Employment Office. Ms. Wesley earned a Master’s Degree in Criminology from the University of Essex in England at age 21, where she also worked for the Disabled Students Services Department. Ms. Wesley completed one year of Law School at Pepperdine University prior to accepting a position with the FBI. Ms. Wesley worked for the FBI for six (6) years, earning several performance awards and promotions, serving on numerous advisory panels, and completing a Temporary Duty Assignment to Baghdad, Iraq. Ms. Wesley voluntarily separated from the FBI in 2010, just prior to the birth of her first child. Ms. Wesley applied for reinstatement approximately three years prior to being offered a spot in BFTC 1801.
72. Ms. Wesley attended BFTC 18-01 as a NIAT. Although Ms. Wesley graduated from the Academy, she was subjected to pervasive harassment, discrimination and retaliation. Ms. Wesley was issued SNs based upon untruthful allegations made by Training Division field counselors and managers, following Ms. Wesley’s attempts to address multiple instances of discrimination she witnessed.
73. UC Kellie Holland stated that Ms. Wesley had not been on her “radar” prior to Ms. Wesley contacting UC Holland after witnessing extreme harassment and discrimination of a female trainee. Instead of UC Holland treating the blatant EEO violations with any seriousness or concern, UC Holland threatened Ms. Wesley by stating that her coming forward would not go without consequence.
74. Ms. Wesley demonstrated outstanding academic and professional performance during BFTC, and did not receive any SNs for failing to meet objective standards. However, UC
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Holland personally issued Ms. Wesley two SNs in one sitting just days before graduation. UC Holland informed Ms. Wesley that UC Holland had actively asked Ms. Wesley’s counselor, supervisor and instructors for derogatory information about Ms. Wesley. UC Holland contorted the verbiage and context of a statement made by Ms. Wesley two months prior to cite Ms. Wesley for insubordination and lack of professional judgement. When Ms. Wesley challenged UC Holland on the accuracy of the statement, UC Holland quipped “Is it more important to be right or to be heard? Hmmm?”
75. Ms. Wesley was frequently subjected to intimidation tactics and threatened with dismissal over menial and even fabricated incidents failing to rise to the level of suitability violations. On one occasion, SIA Brian Moses threatened Ms. Wesley with dismissal for tying her uniform jacket around her waist, claiming that this was not an approved manner to wear her uniform. On numerous occasions, Ms. Wesley witnessed counselors and supervisors choose not to issue SNs to male trainees for committing objective, and often egregious violations of suitability standards, while she and other trainees were constantly threatened even when doing nothing wrong. Ms. Wesley was treated with hostility, unprofessionalism, and was publicly harassed about her physical limitations and disabilities.
76. Despite following the provided protocol for requesting Reasonable Accommodations necessary to facilitate Ms. Wesley’s success at the Academy and being granted those Reasonable Accommodations by the appropriate administrative officials, Ms. Wesley was punitively stripped of her accommodations. Ms. Wesley suffered adverse health effects from the removal of her accommodations, which required outside medical intervention and treatment. Ms. Wesley’s HIPAA-protected medical information was repeatedly disclosed in classroom settings as a way to mock and intimidate her. Ms. Wesley was also subject to harassment regarding her
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marital status, parental status, and physical appearance. Ms. Wesley’s counselor repeatedly claimed that Ms. Wesley had become pregnant while engaged in an extramarital affair during her time at the Academy, which was completely untrue. Ms. Wesley was subjected to frequent inappropriate sexually-charged commentary by male instructors and counselors, including comments about women needing to take their birth control to control their moods, inviting female trainees over to a male instructor’s home for special “after hours” attention, and openly disparaging women following the males’ divorces. VI. “B.A.”
77. Plaintiff “B.A.”, a Hispanic female, graduated from Penn State University. “B.A.” attended the BFTC as a NIAT. Despite having passed all of her academic tests and requirements, “B.A.” was dismissed from the BFTC ten (10) days before graduation for “lack of judgment” after receiving three (3) SNs. During her first week of training, B.A. received a SN for parking in the wrong section of the parking lot because the designated lot was full, (for a brief period of time, there were three overlapping classes at the Academy – 18-01, 18-02, and 18-03) and she was unsure of where to park. However, B.A. later learned that multiple other people parked in the wrong section of the parking lot but did not receive an SN. B.A. also received a fabricated SN from Supervisory Intelligence Analyst [hereinafter “SIA”] Tyone Jiles for “breaking chainof-command” via email communications, and when she attempted to address the falsity of the SN with her instructor, he simply shrugged his shoulders and stated, “I don’t know.” B.A. then attempted to address the issue with UC Kellie Holland about the erroneously issued SN. In response, UC Holland stated that “perception is reality” and that it “didn’t matter what the details were, just what things appeared to be.” Ms. Holland also told B.A. she was nothing but a “distraction” to her agents, and that her entire personality was a “character flaw.”
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78. Throughout her time at the Academy, B.A. was subjected to pervasive sexual harassment by attendants of the National Academy, as well as some of the New Agent Trainees, Special Agents, and members of management. Specifically, on one occasion, an approximately 55-year old National Academy male slipped B.A. his number. Additionally, on two (2) separate occasions, two (2) male NATs tried to convince her to have sexual intercourse with them in the back of their car. Similarly, on two (2) separate occasions, two (2) additional male NATs tried to convince her to sneak up to the vacant 7th floor to have sex with them. One (1) other male NAT spent about a week harassing B.A. via text, sending her up to fifteen (15) texts a day until she had to tell him how inappropriate and uncomfortable he made her feel. On yet another occasion, B.A. had to have one of her friends escort her back to her room because a different male NAT was following her throughout the night (including up to her room). None of the aforementioned males received SNs or other admonishments for their highly inappropriate sexualized behavior. Additionally, instructors and counselors would regularly tell B.A. she needed to smile more. B.A. asked dozens of other male trainees at the Academy if they had ever been formally advised they need to smile more and they all responded “no.”
79. Additionally, B.A.’s Senior Supervisory Intelligence Analyst [hereinafter “SSIA”] Brian Moses, publicly asked a group of males from B.A.’s section what they thought of her. When B.A. found out, she spoke to her class counselor about the blatant gender discrimination and harassment she was experiencing. B.A.’s counselor acknowledged the treatment of women at the Academy and said, “you own a mirror, you know you’re a pretty girl”, that was the way things were and to just “play the game” if she wanted to succeed. When B.A. confronted SSIA Moses about his attempts to elicit gossip about her, SSIA Moses responded by falsely claiming that there was a peer-review process in place where instructors consulted students on their opinions about
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other students. No such formal peer-review process exists: SSIA Moses demonstrated a lack of candor in attempts to legitimize his illegal behavior, in direct violation of the FBI Core Values.
80. One of B.A.’s instructors, SSA Charles Ro, also engaged in highly inappropriate behavior. During each of his lectures, Mr. Ro would lay out a string of sexist, racist, and generally sophomoric/inappropriate jokes such as a calling the only African-American female trainee with braids “spaghetti head,” constantly referring to his “little blue balls” or the size of his genitals, and claiming that female informants were not reliable because they were “too emotional” and all they do is sleep around. Mr. Ro incessantly inquired from B.A.’s male classmates about her personal life in a sexual and derogatory manner. When B.A. politely asked him about this at the Academy, he denied ever discussing her personal life with other trainees; however, in his response to her EEOC complaint, he acknowledged he discussed her personal/sex life with other trainees, but only because they approached him about it first (those trainees firmly denied that and in fact were the ones to tell B.A. about the incidents in the first place). SA Ro twice demonstrated a lack of candor, first through denial of ever having engaged in such discussion, and second as an attempt to justify why it was okay for him, as a male instructor with the FBI, to be discussing the personal/marital/sex life of a twenty-five (25) year-old female student. His behavior was in direct violation of the FBI Core Values.
81. During her TRB, B.A. asked that the Board speak to her other instructors, the Board told B.A. they would, but then never did so. B.A. was alerted to her dismissal via text message from another trainee because SSA Peter Spohn announced her dismissal to her entire class before management informed B.A. of the decision. Although B.A. was dismissed from the academy after receiving three (3) SNs, a male student in her class with at least seven (7) SNs graduated without ever being brought before the TRB.
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VII. “D.A” 82. D.A., an African American female, entered on duty with the FBI in December 2011,
and is currently employed as a Staff Operations Specialist in the Counterterrorism Division. D.A. graduated magna cum laude with a Dual Bachelor of Arts Degree in Criminal Justice and Sociology from Mount St. Mary’s University, and then later obtained her Master of Arts in Homeland Security where she was named Valedictorian of her graduating class at Monmouth University. D.A. finished her academic career by obtaining her PhD from Nova Southeastern University. D.A. received two (2) performance-based awards in her first three (3) years employed with the Bureau.
83. D.A. was enrolled as a NAT in BFTC 18-03. D.A. successfully passed the PFT on numerous occasions (including holding the all-time fastest score on the 300-meter sprint for women), all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations. She was dismissed after being brought before the TRB and discharged on June 28, 2018, after receiving three (3) SNs.
84. D.A. was routinely singled out and embarrassed by TTU instructors for Tactical Judgement performance despite the fact that D.A.’s performance was the same or similar to that of her classmates who were not verbally criticized. For example, D.A. was told to be more aggressive in her paint gun shooting although she successfully completed the exercise. Another incident occurred when D.A. was issued a SN for allegedly dropping her weapon during a training scenario. When she discussed the matter with her instructor and stated that she in fact did not drop her weapon, she was told she had been overwhelmed by the exercise and probably didn’t remember it correctly. Finally, D.A. was also threatened with a SN for “not running fast enough” during a training exercise, even though she had completed the exercise successfully. Classmates who completed the exercise after D.A. responded and moved slower than D.A.; however, they were not
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threatened with or given a SN. VIII. “S.B.”
85. Plaintiff S.B., a Caucasian female, graduated Magna Cum Laude from West Virginia University with two (2) Bachelor of Arts’ degrees in Criminology and Psychology. While attending undergraduate school, S.B. interned with the FBI, interned with the Monongalia County Youth Crisis Shelter, and held a part-time job as a West Virginia University Police Cadet. Upon graduating in 2014, S.B. was hired as a Management and Program Analyst with the FBI. S.B. received two (2) performance-based awards, was nominated for Analyst of the Year, and received a meritorious promotion in her first two (2) years working full time with the FBI. S.B. was hired as a NAT in BFTC 17-03.
86. Despite having successfully passed the PFT on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations with no re-takes, she was dismissed two (2) weeks before graduation on September 20, 2017, after being brought before the TRB. S.B. was informed she was being referred to the TRB after only two (2) SNs; one of which was for her first tactical error made during paint gun scenarios, and the second for questioning an instructor’s feedback for clarification purposes. S.B. had no prior tactical experience prior to entering the Academy. When asking the instructor for clarification, S.B. was ridiculed in front of her classmates and accused of “being argumentative.” S.B. was then cornered after class by the instructor and another instructor who had been sexually harassing S.B., and was yelled at and cursed at for “having an attitude problem and being too argumentative.”
87. The TRB for S.B. was originally scheduled before the second round of paint gun scenarios, but was postponed upon request of her class supervisor, to allow her to demonstrate
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improvement. S.B. was complimented by several instructors for her exceptional improvement during the second round of paint gun scenarios. Upon completion of the second round of paint gun scenarios, S.B. was informed the TRB was “on hold” and was later subjected to the OC Spray portion of training. S.B. was informed the next morning, while recovering from chemical burns in both of her eyes, that the TRB would be held that morning. S.B. was brought before the TRB on September 20, 2017, where she was issued a third SN, which violated the Bureau’s protocol for issuances of SNs. She read this SN for the first time in the TRB and did not agree with the information contained in the document. S.B.’s instructor issued this SN based on false accusations made during the second round of paint gun scenarios in which several of S.B.’s male classmates corrected the instructor the day before.
88. S.B. was also informed that the TRB was required to talk to instructors that were involved in every aspect of training, when in reality, the TRB only spoke with S.B.’s class counselors, class supervisor, and the tactical instructors who had issued her SNs. S.B.’s class counselors and supervisor provided arguments for the TRB to retain S.B.’s and allow her to graduate. Other male trainees were issued three (3) or more SNs, but were not brought before the TRB. S.B. also witnessed male trainees questioning instructors’ feedback, sometimes escalating into arguments with the instructors, and the male trainees were neither cursed at, ridiculed, or issued SNs. S.B. was dismissed the day of the Tactics Test, and was informed the basis of her dismissal was “lack of judgment and emotional maturity”. S.B. was not offered any sort of remedial tactical training, as is the standard with other units in the BFTC curriculum. Additionally, S.B. informed UC Kellie Holland of the sexual harassment she experienced, who dismissed S.B.’s concerns and lamented that “there’s nothing you can do about it, you will be having a lot of mixed emotions right now, and there is no internal appeal process.”
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89. Further, despite S.B.’s exceptional work history as an employee of the FBI, HRD was unable to find a position for S.B., placing her in a Leave Without Pay (LWOP) status until December 22, 2017, when she was removed from the rolls of the FBI. Consequently, S.B. was forced to endure a break-in-service for over two (2) months before she was able to use her contacts to interview for her current position at the FBI.
IX. “D.C.” 90. Plaintiff D.C., a Caucasian female, has worked for the FBI since December 2011.
D.C. received a Bachelor of Arts in Political Science with a specialized focus in Legal Studies and minor in Professional Writing from Virginia Tech University. D.C. worked full time as a Financial Operations Specialist for the FBI in San Antonio, Texas for three (3) years. D.C. then worked for the FBI as an Intelligence Analyst in the International Operations Division and deployed overseas on behalf of the FBI multiple times over a 2.5 year period. While working full-time for the FBI, D.C. earned her Master of Arts in International Relations, Security Policy at St. Mary’s University in San Antonio, Texas.
91. D.C. reported as a NAT in course BFTC 17-05 on October 17, 2017. D.C. successfully passed every PFT, all academic tests, the pistol and carbine firearms qualifications, and all other performance tests and evaluations in addition to attaining a perfect score on the defensive tactics exam (in which she had no prior experience before attending BFTC). D.C. received five (5) total SNs at TTU, was referred to the TRB, and was subsequently dismissed two (2) weeks before graduation. D.C. received two (2) SNs during the first few weeks at TTU during the same training scenario. One was for flagging a teammate during a “J-hook” room entry, during
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which she witnessed a male trainee also do the day before D.C. was dismissed (towards the end of training). D.C. made this mistake with no prior tactical experience at the beginning of training and was harassed, screamed at, told she was “worthless”, and written up. After his violation within mere weeks of graduation, the male NAT with previous military tactical experience, was patiently coached by the same instructor, offering remedial guidance, “the J-hook angle can be tricky, this is how you adjust in this situation.”
92. The third SN D.C. received was due to following instructions given by the same instructor during the previous training session. The fourth SN D.C. received was for three (3) “excessive shots” fired by her male colleague. D.C. was written up for “firing nine (9) shots,” only six (6) of which were hers. D.C. requested the instructor do an ammo count of the weapon’s magazine at the end of the scenario to verify how many shots she had fired. He declined to do so and still wrote her up for firing nine (9) shots and had one of the other instructors hand her the paperwork for the SN on a different day. The instructor refused to meet to discuss the scenario with D.C. after she received the SN. The three (3) shots that were fired were done so by the male colleague who insisted he had no memory of his actions during the training segment at all. D.C. was told by the TRB and the instructor that her memory of the encounter, despite the concrete evidence of ammunition remaining, was clearly misremembered due to the stress of the training scenario.
93. D.C. had trained nightly with her classmates and had testified to the board that she was confident she could pass the final TTU test with all the extra work she had been putting in. D.C.’s entire section of over thirty (30) NATs all signed a letter respectfully requesting the TRB allow her to take the test with her fellow NATs. She was told that there simply was not enough time to train her adequately before graduation. D.C. was dismissed from NAT with no exam
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failures two weeks before graduation. The reason for dismissal was “lack of tactical judgement,” which she was told was considered an “inherent skill.” D.C. was later informed that a male colleague who had previously failed a PFT and an academic test and who was commonly known by classmates for poor tactics, took and failed the final TTU test. He received remedial training and retook the final TTU test in which he failed to meet the rubric standards again. He was permitted by the review board to “articulate” the mistake made during his retake of the final TTU test and they marked it as a “pass.” He was ultimately allowed to graduate. D.C. had demonstrated an ability and unwavering willingness to learn through her entire time at BFTC, and she was not permitted to take the final exam to demonstrate the same. D.C. was not offered any sort of remedial tactical training, as is the standard with other units in the BFTC curriculum. Of the seven (7) female NATs in her section, only three (3) of the female NATs graduated and are now Special Agents. X. “P.E.”
94. Plaintiff P.E., a Hispanic female, graduated with a Bachelors of Arts Degree in Language, Culture and World Trade from Pace University. Prior to entering on duty with the FBI, P.E. served her country as a United States Marine. She attended and completed the Marine Infantry Course in 2002. The course consisted of the assembly and operation of multiple weapon systems. Additionally, P.E. was trained in military tactics and maneuvers. Upon graduation, P.E. was mobilized in support of the War on Terror in January 2003. She served as a Radio Operator during the invasion into Iraq. In 2004, P.E. once again deployed overseas in support of Operation Iraqi Freedom. She served as a Radio Operators on convoy traveling to and from Ramadi, Iraq. P.E. was recognized for her outstanding performance in keeping accountability of all the communication equipment readiness for Communications Platoon, 1st Marine Division.
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95. P.E. entered on duty with the FBI in October 2006, while still in the Marine Corps Reserves. During her time at the FBI, she held many positions, and had the opportunity to go on Temporary Duty to Baghdad, Iraq. She later served as a Surveillance Specialist in the Counterintelligence Unit for four (4) years. In 2013, P.E., completed a third overseas deployment in support of The Georgian Deployment Program, where she served as Radio Chief Instructor and advisor in the program. P.E. had completed a total of fourteen (14) years in the United States Marine Corps. She was a 4th award expert rifleman and acquired her third degree black belt in the Marine Corps Martial Arts Program. P.E. continued to serve as a Gunnery Sergeant in the Marine Corps Reserve.
96. In June 2016, P.E. entered BFTC 16-04. Despite having successfully passed the PFT on numerous occasions, all academic tests, pistol and carbine firearms qualifications, and other performance tests and evaluations, P.E. was dismissed by TRB on October 25, 2016, after receiving four (4) SNs from TTU. The first day of TTU, SSA Nguyen, approached P.E. after class and asked her about her military history. P.E. summarized her military history, SSA Nguyen smugly walked away without a response. P.E. did not understand why she was singled out by SSA Nguyen, as there were several other veterans in the class. From that day forward, every time P.E. asked questions, SSA Nguyen verbally berated her. During a review of a scenario, P.E. asked a question and SSA Nguyen started yelling and cursing at her. Thereafter, SSA Nguyen would talk to the male NATs but would not address any questions P.E. asked. P.E. asked SSA Nguyen if he could assist in arranging after hours training for those who wanted supplemental practice but he refused.
97. P.E. received three (3) of the four (4) SNs on one day. One SN was issued for flagging Instructors while P.E. took a fall. NATs had been instructed not to lower their weapons
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when Instructors walked around observing scenarios. P.E. was issued the second SN for flagging her partner when entering a room, despite instructors stating during the classroom instruction that flagging partners would be inevitable in certain entry situations. That same day, P.E. male partner was not written up for the more egregious error of shooting an unarmed subject. Her partner later told her the Instructor had spoken to him and another male classmate and they were both told not to worry because they would not be written up. The third SN claimed that P.E. hesitated 3-4 seconds to engage and had to be told by her partner to shoot. Her partner went on to tell P.E. to cuff the subject. P.E. did not want to get confrontational with her partner, so she did not respond negatively and just cuffed the subject. P.E. was not aware that she had received the SNs until a week later. The Instructor provided with copies of the SNs, but did not have the signature and dates of when they were signed.
98. During the training scenarios some of P.E.’s male counterparts had committed similar or worse mistakes and did not receive SNs. P.E. was dismissed with just fifteen (15) training days left. Upon being dismissed, P.E., was recommended for continued employment. P.E. was placed on annual leave for one (1) pay period and then placed on leave without pay for the next pay period. P.E. was offered a Support Service Technician GS-7 position in Virginia, three pay grades below the Special Agent position, and well below her prior grade. P.E. informed Human Resource Specialist that she was a 10-year employee with the FBI and was previously a Surveillance Specialist, GS-11 step 4, New York (NY), before attending BFTC. The Specialist stated they would refer her situation to the NY field office for consideration, however, when P.E. reached out to the New York office, she was told they were not aware of her situation. She was later contacted by the Administrative Officer and offered a Special Operations Specialist position on The Joint Terrorism Task Force. P.E. accepted the position and served in the position for six
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(6) months. In June, 2017, P.E. voluntarily departed the FBI to attend The Department of Homeland Security, Criminal Investigator Program at the Federal Law Enforcement Training Center, Glenn County Georgia. P.E. successfully completed the Criminal Investigator Program and received recognition for achieving a Top Shooter score. XI. “B.G.”
99. Plaintiff B.G., a Hispanic female, received a full scholarship to the University at Albany, where she studied International Relations, and led her graduating class as the Commencement Day Speaker. She went on to pursue a career within the U.S. Intelligence Community and after a decade of government service, was eager to join the FBI. While serving overseas in Europe, B.G. received just one month’s notice that she had been slated to attend the FBI Academy. Committed to accepting her position and ensuing relocation, she sold her car, furniture, and household goods and embarked on a one-way trip to the Academy in July 2018 to attend BFTC 18-04.
100. While at Quantico, B.G. passed her academic, physical fitness, and firearms exams with impressive scores. With three (3) weeks left for graduation, B.G. was informed that she had failed her grappling test and would not be graduating. When she inquired as to the exact reason for her exam failure, the Training Division stated that they were uncertain but informed her that she would be recommended for Academy re-entry the following year. Since B.G. had been serving overseas for three (3) years prior to Quantico, she did not have a home in the U.S. to report to upon being dismissed from the Academy. Despite being homeless, she was hurried out of the Academy within hours of receiving notice of her exam failure. During out-processing, requests for temporary storage of her personal belongings were turned down and she was forced to donate the
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majority of her personal valuables to the FBI. Her belongings were collected in large plastic bags and removed by FBI staff.
101. Days after her dismissal, FBI Human Resources Division [hereinafter “HRD”] contacted B.G. to offer her a position as an entry-level Operational Support Technician. B.G. was grateful for the opportunity but was reluctant to accept a GS-8, Step 1 position and salary due to her extensive IC experience and prior grade of GS-11, Step 4. B.G. was informed that because she was an “FBI dismissal” her grade and position could not be negotiated. She was likewise advised that if she did not accept the first job offered to her that she would be terminated and face a break in Federal service. According to HRD, “Staffing has been advised to treat dismissal candidates as demotions for unacceptable performance”; however, upon request, HRD was unable to provide an official policy to substantiate this assertion.
102. B.G.’s previous accomplishments and financial situation were treated with complete disregard due to a subjective grappling evaluation, for which no remediation was offered, which somehow allowed the FBI to justify discrediting ten (10) years of prior government service, an $18,000 salary cut, career derailment, and a one-year waiting period to even re-apply to the academy (which B.G. would have to completely start over). HRD admonished that a request to re-enter the Academy upon dismissal is not a guarantee that re-entry will be granted, demonstrating even further subjectivity. B.G. was discriminated against during Defensive Tactics [hereinafter “DT”] and wrongfully dismissed from BFTC after being constantly singled out and targeted because of her gender. B.G., who has a metal rod in her back, was accused of not trying hard enough, being “not intense enough”, and being “lazy.” B.G. is 5 ft, 124-pounds, and has a physical disability, but in no way lacks the drive, commitment or physical prowess necessary to perform the required duties of a Special Agent.
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103. On multiple occasions during her BFTC, B.G. was precluded from grappling with other students, which is common practice. Instead, she was repeatedly singled out to grapple with DT instructors SSA Sirko and SSA Belinda. Very rarely, if ever, were male trainees required to grapple with DT instructors. Selecting B.G. to grapple the DT instructors became so predictable that other female classmates made statements like, “Whoa, they really do love you, Grace.” SSA Sirko and SSA Belinda were the only DT instructors at the Academy that consistently targeted females to grapple with them.
104. Despite receiving SNs months earlier from TTU, TMU waited until three (3) weeks prior to B.G.’s graduation to inform her that “she did not meet the standard” in defensive tactics required for graduation. However, the Defensive Tactics Unit [hereinafter “DTU”] never informed B.G. that she was deficient in grappling, nor did they articulate why she continued to be singled out to fight by the instructors. DTU did not issue an SN to inform B.G. of her perceived missteps until her dismissal. B.G. was not afforded the opportunity to present her case before the TRB, again demonstrating the inconsistency with which SNs and dismissals are rendered. DTU failed to offer remedial sessions offered to other trainees, and never suggested a performance plan for improvement. This practice contrasts greatly with how other units at the Academy operate, including the Firearms Training Unit, which offers comprehensive remediation to ensure trainee success. Firearms instructors inform both the student and his/her supervisor of a possible deficiency and offer timely remedial sessions to improve the trainee’s technique.
XII. “L.M.” 105. Plaintiff L.M., a multi-racial female with a disability, who holds a bachelor’s degree
in Psychology/Criminal Justice, a Master’s degree in Clinical Mental Health Counseling, and is currently studying Biomedical Sciences at the University of South Florida while preparing for
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enrollment in Medical School. Prior to attending the BFTC 18-01, L.M. was employed by the FBI as an investigative specialist for the Special Surveillance Group (SSG) in Kansas City.
106. L.M. was enrolled in the BFTC 18-01 as a NIAT, after being forced to enter the program by her former Special Agent in Charge [hereinafter “SAC”], Darrin Jones. L.M. had passed phase I and II of the application process for the Special Agent position but SAC Jones actively targeted L.M. and endeavored to put a stop to her application. This led L.M. to file a complaint with the EEOC, which led to mediation and ultimately L.M.’s enrollment in BFTC as a NIAT to enable her to leave the Kansas City Division.
107. During her training at the FBI Academy, L.M. was subjected to pervasive harassment because of an approved disability accommodation to eat small amounts several times a day and frequently drink water. Despite this, on several occasions, she received SNs for entering the classroom water in a sealed container, (but was arbitrarily determined to not be spill-proof, despite never spilling), failing to swallow a small bit food she was chewing prior to entering the classroom, and otherwise tending to her medical needs. Her former SAC even approached her while at the Academy to let her know that he was “surprised” to see that she was still there, clearly suggesting that he was surprised she had not been dismissed. She was also subjected to frequent unwarranted scrutiny of her dress and appearance. When she complained of hostility and harassment, she was told by UC Kellie Holland that she was guilty of unprofessional behavior, told she didn’t know what “real” discrimination looked like, and would be immediately recommended for dismissal. Despite attempts by fellow trainees and instructors to speak at the TRB on L.M.’s behalf, none were given the opportunity to do so, and L.M. was dismissed.
108. Additionally, subsequent to her dismissal, the FBI failed to pay L.M. her final paycheck and kept her in the system as an employee on leave without pay rather than a former
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employee, thereby resulting in Ms. Spencer being wrongfully charged for health insurance from the period of March 2018 through December 2018. This further resulted in damaging L.M.’s credit report. Despite promising to correct the fraudulent charges, the FBI has failed to do so. Further, when L.M. received her tax refund for 2018, she was made aware that the FBI had garnished the money for the fraudulent health insurance charges from her 2018 tax return refund. XIII. “W.M.”
109. Plaintiff W.M., a Caucasian female, graduated with a Bachelor of Arts in Political Science from North Carolina State University, and a Master of Arts in Political Science from the University of North Carolina-Chapel Hill.
110. W.M. was enrolled in BFTC 18-02. Despite having successfully passed the Physical Fitness Test (PFT), all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations, W.M. was brought before the TRB and dismissed three (3) weeks prior to graduation, for lack of judgement. Furthermore, the TRB did not recommend W.M. for re-employment with the FBI due to “lack of emotional maturity and evasiveness.” However, prior to attending the BFTC, W.M. had been highly successful in her previous position, earning near perfect or perfect annual reviews and several performance-based awards. Upon hearing of her dismissal from the BFTC, W.M. previous supervisor and Executive Management immediately took action, without hesitation, to have her re-instated because of her previous reputation as a high-performing employee. W.M. has continued to receive a perfect performance rating from her current office. It is incomprehensible that someone who has been a model employee before and after attending the Academy, acted so reprehensibly as to be refused a recommendation for re-hire during the Academy.
111. W.M. was given a total of three (3) SNs by TTU for tactical deficiencies noted
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during tactical training scenarios. She also received one SN when she initially failed her driving test, but then passed on her first attempt at the retest. The first two (2) of W.M.’s SNs, issued on June 18, 2018, were for scenarios in which the majority of NATs in her section struggled and failed. On this day specifically, approximately half of the class received SNs for the same scenarios as W.M.; however, W.M. was selected for the TRB based on these two (2) SNs, whereas her classmates largely were not. W.M. was later issued a third SN for an accidental discharge of her weapon in a scenario where she was specifically instructed not to unload her weapon prior to beginning a “dry fire” exercise.
112. At the time she was selected for the TRB, four (4) male trainees and two (2) other females were also selected for review. All male trainees had more SNs than W.M. Of those males, one was allowed to return to training, without having to appear before the TRB. Two (2) others were allowed to return to training after attending their TRBs. Only the fourth male was dismissed. The other two (2) females were also dismissed. W.M. was given no option for remedial training, as is the standard with other units in the BFTC. In addition, she had received no feedback from the instructors to indicate she was considered to have been failing at TTU.
113. On only the second day of training at TTU, she was called a “fucking analyst” by her PTI after she asked a simple question, and then was told she was “falling behind.” W.M. received no subsequent feedback from the PTI regarding her performance at TTU. Conversely, she was told by another NAT, who had been selected to serve as a go-between for the students and the TTU staff, that the PTI thought she had improved and could tell she had been practicing. When she specifically asked her PTI how she might improve after finding out she was under review, she was told by the PTI that he could not provide comments on her performance and that he was unable to identify any areas for improvement. In this same meeting, her PTI relayed a rumor he had heard
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that W.M. was telling other NATs not to take the TTU training seriously because it was not realistic. In fact, the opposite was true; that is, when other students talked about how unrealistic training was, W.M. corrected them to reiterate the importance of the training. Ignoring her answer, the PTI proceeded to berate her for this rumor. Her PTI must have relayed this conversation to the TRB, because they asked for her opinion on the feedback mechanisms for TTU, a deviation from the standard practice of only asking about SNs. When W.M. answered their question and expressed her concerns, she was chastised by the TRB and told that she was not taking responsibility for her actions and attempting to cast blame elsewhere. Because of this interaction, W.M. believes she was not recommended for re-hire out of retaliation for her speaking out against the current practices within TTU. W.M. was dismissed approximately two (2) hours before she was scheduled to take the final tactics test, which was also the final test remaining in training. XIV. C.S.
114. Plaintiff C.S., a Caucasian female, graduated from Baldwin-Wallace College with a Bachelor’s of Science in Psychology in December 2010. Following graduation, she worked for a mental health agency in the forensic mental health department with individuals diagnosed with severe mental health disorders and criminal justice involvement. After approximately four (4) years of serving in various positions within this agency, C.S. went on to become a Probation Officer with Cuyahoga County in Cleveland, Ohio. After a few years working in probation, she was then hired by the FBI and began training at the Academy on March 5, 2017, in BFTC 17-02. Despite having successfully passed the PFT, all academic tests, pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations, C.S. was dismissed just a few weeks before graduation on July 14, 2017, after being brought before the TRB.
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115. C.S. received her first SN on the first day or training at Hogan’s Alley on May 23, 2017. The first part of the suitability stated the following:
During CATS-1Action/Re-Action drills, NAT Chester demonstrated confusion/unfamiliarity with handgun manipulation and frustration when she incurred multiple perceived (only one was observed by staff) malfunctions. On the first malfunction, staff removed NAT from the line and talked NAT through the clearing of a double-feed. NATs on the line were repeatedly told to work any malfunction in-place "within their space." In approximately three subsequent "malfunctions," NAT Chester removed herself from the line, gun in hand flagging her fellow trainees, to meander behind other NATs while attempting to clear the weapon. Upon each observation, staff immediately directed and/or reminded NAT to correct her muzzle disciple and to "find a wall" to safely conduct the clearing. This suitability clearly states that she was told to “work within her space” to clear a malfunction and then later states she was told to “find a wall” to safely clear her weapon. There is obvious ambiguity in the directions that were given which created confusion as to whether to stay on the line or move off of it to clear her weapon. Prior to this day they had only ever worked on their malfunctions at firearms on the firing line, so she was doing what she had been trained to do up to that point. Due to the Tactical Training Unit’s unclear instructions of where to go to clear her weapon, she had no idea or expectation of what exactly they were looking for. It should further be noted that C.S. had never had any prior issues with muzzle control when she was training with the Firearms Training Unit. 116. The second portion of the suitability claimed that C.S. acted unprofessionally with another male NAT during the jovial “Wild West” scenario. Both she and the male NAT were friends and made lighthearted jokes at each other during the scenario, however, only C.S. received an SN. Additionally, the SN was written in a manner that was both misleading and lacked candor. Although C.S. did not want to sign the SN, she had been advised to refrain from arguing with or challenging the authority of TTU because they “aren’t like the rest of the academy instructors.”
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117. C.S. received her next two (2) SNs during her tactical exam on July 11, 2017, both for “judgement issues with deadly force.” Tactical Instructors are easily able to create the appearance of failure or deficiency by misrepresenting scenarios and inducing failure in female trainees at will, which was absolutely the case for C.S. Due to the combination of misdirection/lack of direction during the exam, C.S. was under the impression that when the subject was down, the scenario would be over. However, when the instructor failed to end the first scenario after C.S. appropriately applied deadly force, C.S. was under the mistaken belief that the instructor intended for her to shoot the subject once more to ensure that he was not making a move towards his weapon. The instructor gave C.S. no feedback after the first scenario and moved on to the second scenario during which the instructor, once again, failed to end the scenario and, instead, specifically chose to wait thereby creating further confusion as to what C.S. was supposed to do. This unnecessary but intentional delay created by the instructor manufactured an unrealistic and artificial environment and led to another SN for misapplication of deadly force for C.S.
118. Throughout her training at Hogan’s Alley, C.S. participated in many exercises that involved multiple situations which required discretion and judgement with deadly force, and never had an issue with deadly force. However, there was a male NAT in her class that had “issues with deadly force” during a Hogan’s Alley scenario when he entered a motel room and during the scenario, and shot an innocent, unarmed man in the bathroom. He never went to the review board for this significant error in judgment and was allowed to graduate.
119. C.S. was initially told (along with others who did not pass) that she would be given a re-test on July 14, 2017. However, C.S. was ultimately denied the opportunity to do so as she was referred to the TRB and dismissed on July 14, 2017. Meanwhile, another male NAT from her section who also failed the Tactics exam and was referred to the TRB was allowed to re-take the
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Tactics exam and later graduated from the Academy. It should further be noted that C.S. subsequently, and successfully, graduated from the Phoenix Regional Police Academy, which also has a tactics segment, in April, 2019. XV. “L.S.”
120. Plaintiff L.S., a Caucasian female, has a Bachelor of Business Administration and an MBA in Accounting. She obtained her CPA license in 2012 and actively maintains her license in New York State. Prior to receiving a class date for New Agents’ Training, she worked as an auditor in public accounting for over four (4) years.
121. On September 29, 2015, L.S.’s class participated in a Moot Court practical exercise in which an undercover employee (UCE) played the role of a fourteen year-old girl who was picked up by an adult pedophile that led to the subsequent arrest of the pedophile. L.S. was assigned the role of UCE for her group. L.S.’s Primary Tactical Instructor, SSA Gary Galdes, told L.S. that she should wear “short-shorts, pigtails, pink lipstick, and chew bubblegum.” Mr. Galdes’s comments made L.S. extremely uncomfortable. On the day of the exercise, L.S. opted to wear jeans, a long sleeve shirt, and a backpack. While she was changing for the exercise, L.S. noticed another female trainee putting on short-shorts and styling her hair into pigtails. L.S. asked her classmate why she was dressing in that manner, to which her classmate responded “I’m giving him (SSA Galdes) what he wants.” When L.S. entered her classroom, Galdes asked her why she wasn’t wearing short-shorts, pigtails, and pink lipstick, and chewing bubblegum. Again, Mr. Galdes’s comment made L.S. feel uncomfortable.
122. Mr. Galdes made an additional comment to L.S. that made her feel uncomfortable when he told her that she was going to be his “special project.” L.S. felt the comment was “out of the blue” and it caught her off guard. On September 28, 2015, L.S. learned from a classmate
49

Case 1:19-cv-01581 Document 1 Filed 05/29/19 Page 50 of 55
that SSA Galdes made a derogatory comment about women when he was chastising another trainee about his performance during a tactical exercise. L.S.’s classmate told her Galdes admonished the trainee by saying “you are no better than a fucking female.” L.S. believes this comment clearly showed SSA Galdes’s hostility toward women. L.S. reported Galdes’s comments to class supervisor SSA Jill Sheets, Class Counselor SA Steven Spahn, and SA Kieko Wagner. SSA Sheets interviewed the trainee Galdes directed the comment to, and confirmed Galdes had in fact made the comment.
123. While L.S. was at the Academy, she was aware of a male trainee in her class who failed the Handcuffing One exam. The male trainee passed when he (and other students who failed) were permitted to retake the exam. The male trainee later failed the Handcuffing Two exam, which per the policy, should have resulted in an automatic dismissal from the NAT for failure of two exams. However, on October 2, 2015, the male trainee was removed from the classroom during a non-defensive tactics class and permitted to retake Handcuffing Two (without other members of class 15-10 present) and then was allowed to continue on and graduate with NAC 15-10, indicating a clear bias in favor of males to be successful despite poor performance (and in violation of documented policy).
124. During a conversation that L.S. had with SSA Jill Sheets (one of NAC 15-10’s class supervisors) Ms. Sheets stated that “It’s as if they want you to fail” due to the way L.S. was being treated and singled out in TTU, indicating a bias within the Tactical Training Unit and a perception that TTU targets particular NATs.
50

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XVI. G.T. 125. Plaintiff G.T., a Caucasian female, graduated from the University of Maryland with
a Bachelor of Arts in Political Science. She is licensed to practice law in Virginia, Pennsylvania and New Jersey and litigated for four (4) years before becoming a NAT in the BFTC 17-03, beginning May 14, 2017. After suffering a serious hand injury that required surgery and three (3) pins in July 2017, she had to leave training to heal but was allowed to return to the Academy and continue her training in BFTC 17-05 in October 2017.
126. G.T. successfully passed the PFT on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, as well as other performance evaluations. G.T. was informed she was being referred to the TRB after only two (2) SNs, neither of which were particularly egregious. Half of G.T.’s class received a SN related to the same scenario as one (1) of her SNs. G.T. knew of many males in her class who had more than two (2) SNs who were not recommended for a TRB.
127. G.T. was brought before the TRB on February 1, 2018, where she was issued a third SN from TTU, which violated the Bureau’s own protocol for issuances of SNs. She read this SN for the first time in the TRB and did not agree with the information contained in the document. The TTU test, which is designed to be a more objective test as compared to the “scenarios” arranged by TTU during the course of training, was scheduled for February 2, 2018, the day after G.T.’s review board. SSA Cortney Merkel, G.T.’s counselor, requested the board allow G.T.’s to take the TTU test before they made their decision. G.T. was not permitted to take it and was dismissed after the TRB on February 1, 2018, just two (2) weeks before graduation. No offer of remedial training was provided to G.T. She and other female trainees were told by the TRB that there was not enough time before graduation for them to receive remedial training; however, when several
51

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male NATs failed the TTU final exam, they were given the opportunity for additional training and a retest less than two (2) weeks before graduation.
VIOLATIONS OF LAW 128. The FBI’s unlawful subjective employment practices violate Title VII of the Civil Rights Act of 1964 THE, as amended, the ADA and the Rehabilitation Act 1973 of because plaintiffs are informed and believe that the FBI has maintained and knowingly allowed to persist a subjective personnel system that has not been properly validated under the Uniform Guidelines, 29 C.F.R. Section 1907, and which has an adverse impact on a protected group, here, females. 129. Moreover, the Bureau has been on notice of the disparities in the treatment of female trainees since at least May of 2015 and the Inspector General has issued a report finding underutilization of females in the hiring and retention of females in the Special Agent and Intelligence Analyst job groups, but, the FBI has intentionally failed to address adequately these unlawful employment practices. 130. This discrimination is both disparate treatment and disparate impact and the Bureau tolerates an atmosphere of sexual harassment and retaliation, a lull in violation of Title VII. 131. Plaintiffs, and those similarly situated, have experienced severe and pervasive sexual, racial and disability harassment beyond that which a reasonable woman would tolerate.
WHEREFORE, Plaintiffs request that the Court certify a class of females who, since April 10, 2015 have been at the FBI’s Academy as trainees to become Special Agents and Intelligence Analysts who have been subjected to: Sexual harassment; isolation by instructors; and subjected to a hostile work environment, outdated gender stereotypes and suffered severe emotional distress form the atmosphere at the FBI Academy/terminated; constructively discharged, forced to resign under
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pressure or who perceived that continuing in the training would be a futile gesture; were subjected to retaliation because they were women of color or have disabilities and were additionally harassed isolated, secluded, and subjected to even harsher aspects of the practices alleged herein; when offered other Bureau employment was forced to take position several grades lower than their previous grade or experience justified; and suffered other forms of harassment more than similarly situated males trainees.
PRAYER FOR RELIEF Plaintiffs request relief for the class as follows:
a. Issue a Declaratory Judgment that that the FBI’s personnel practices at the FBI’s Training Division violate Title VII, the Rehabilitation Act of 973, and the ADA;
b. Order the FBI to conduct a validation study of the training evaluation process at the TDU, order that a validated system that minimizes adverse impact of all protected groups be established; pursuant to 29 C.F.R. Section 1607;
c. Require all instructors, counselors and other personnel who are assigned FBI’s Academy before they are permitted to take their position, to undergo equal employment sensitivity training of at least two days by a recognized expert in sexual harassment and discrimination;
d. Order the FBI to take effective affirmative action to recruit more female training instructors, with a required goal of representation equal to that of the FBI as a whole;
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e. Award remedial relief by re-instating, upon request, the plaintiffs, and other members of the class to the TDU and provide each Plaintiff with rightful place seniority and placement upon graduation;
f. Award back pay for each member of the class according to proof; g. For those who do not choose reinstatement, front pay according to proof; h. Award damages for emotional distress for each member of the class up to
$300,000 per class member according to proof; i. Award compensation for members of the class for their expense in bringing
this suit; j. Award Attorneys’ fees according to proof;
k. Order Correction of any personnel files of any affected members of the class; l. Provide such other relief as may be deemed just and Proper Respectfully Submitted /s/ David J. Shaffer #413484 5012 Aurora Dr. Kensington, Maryland 20895 Phone: 202-210-7424 E-Mail: davidshaffer511@gmail.com Attorney for Class Plaintiffs, individually, and on behalf of a putative class
JURY DEMAND
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Case 1:19-cv-01581 Document 1 Filed 05/29/19 Page 55 of 55 Plaintiffs demand a trial by jury. Respectfully Submitted
/s/ David J. Shaffer #413484 5012 Aurora Dr. Kensington, Maryland 20895 Phone: 202-210-7424 E-Mail: davidshaffer511@gmail.com Attorney for Class Plaintiffs, individually, and on behalf of a putative class
55

 
 Case 1:19-cv-01581 Document 6 Filed 07/03/19 Page 1 of 13
F LED

JUL 03 20f9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Clerk, Courts

fUo.rSt.hDe iDstirsictrtic&t oBfaCnokrluu~tbcia

PAULA BIRD, eta!., Plaintiffs, v.
WILLIAM BARR, Defendant.

Civil Action No. 19-cv-1581 Chief Judge Beryl A. Howell

MEMORANDUM OPINION AND ORDER Eleven of the sixteen plaintiffs in this lawsuit have filed a third motion to proceed under pseudonyms in their instant suit against the Department of Justice alleging, individually and on behalf of a class of female New Agent Trainees and Intelligence Analyst Trainees, violations by the Federal Bureau ofinvestigation ("FBI") of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12111 et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq. See Compl. ~ 1. The plaintiffs' original motion to proceed under pseudonyms was denied on June 6, 2019, because the moving plaintiffs failed to provide sufficient detail to assess the privacy interests at stake and therefore failed to meet their burden of showing that those privacy interests outweighed the public's presumptive and substantial interest in knowing the details ofjudicial litigation. See Memorandum & Order, Bird v. Barr, 19-cv-1581 (D.D.C. June 6, 20 19) at 4-5, ECF No. 3. All sixteen plaintiffs, were, however, permitted to seal their home addresses in light of their "risk of being targeted for threats of violence or retaliation from subjects of [an] investigation." !d. at 8 (internal quotation marks and citation omitted). The plaintiffs' second motion to proceed under pseudonyms was also denied on June 26, 2019. See Min. Order (June 26, 20 19) (noting that

Case 1:19-cv-01581 Document 6 Filed 07/03/19 Page 2 of 13
second motion appeared to be in "draft" form , with the majority of supporting declarations undated and unsigned, with attempts to reach counsel telephonically unsuccessful).
The moving plaintiffs' third motion supplies additional facts, supported with sworn declarations, concerning each plaintiffs reasons for seeking to proceed under a pseudonym. Each moving plaintiff, with the exception ofL.M., highlights the concomitant risks posed to her safety and career in law enforcement and intelligence agencies, and potential operations of those agencies, should her name, position, location, and other personal details be made publicly available. For the reasons set forth below, the moving plaintiffs' motion is granted in part and denied as to L.M., subject to any further consideration by the United States District Judge to whom this case is randomly assigned. 1 I. BACKGROUND
The plaintiffs allege that, since April I0, 20 I5 and continuing to the present, while attending the FBI's Training Academy in Quantico, Virginia, they were sexually harassed, subjected to a hostile work environment and outdated gender stereotypes, terminated, constructively discharged, or otherwise subjected to retaliation in whole or in part because of their gender or disability. Compl. ~I. Eight ofthe eleven moving plaintiffs seeking to proceed under pseudonyms currently work in law enforcement or the intelligence communities and fear that disclosure of their identities will put their safety at risk, damage their reputation at work, inhibit their ability to complete undercover assignments or other investigations in which their true identities must be shielded, possibly jeopardizing the success of such assignments and investigations, or will violate policies requiring that their work and/or identities be kept confidential. See Pis.' Mem. Supporting Mot. to Proceed
Under Local Civil Rule 40o7(f), the Chief Judge "shall . 0 0 hear and determine ... motion[s] to file a pseudonymous complaint." LCvR 40.7(±).
2

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Anonymously ("Pis.' Mem.") at 6-9. Further, the plaintiffs allege that two ofthe named plaintiffs in this case have already been retaliated against for their participation in this lawsuit, including one plaintiff who has been threatened with dismissal, and that they therefore have a reasonable fear of retaliation if their names are exposed. See id. at 2-5.
II. LEGALSTANDARD
Generally, a complaint must state the names ofthe parties and address of the plaintiff. FED. R. C!v. P. lO(a) ("The title of the complaint must name all the parties."); LCvR 5.1(c)(l) ("The first filing by or on behalf of a party shall have in the caption the name and full residence address of the party," and "[f]ailure to provide the address information within 30 days of filing may result in the dismissal ofthe case against the defendant."); LCvR 11.1 (same requirement as LCvR 5.l(c)(l)). These rules promote the public's interest "in knowing the names of [] litigants" because "disclosing the parties' identities furthers openness of judicial proceedings," Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014); see also Doe v. Frank, 951 F.2d 320, 322 (lith Cir. 1992) (per curiam) ("This rule serves more than administrative convenience. It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties."). Thus, the D.C. Circuit has instructed that "parties to a lawsuit must typically openly identify themselves in their pleadings," with "[b]asic fairness dictat[ing] that those among the defendants' accusers who wish to participate ... as individual party plaintiffs must do so under their real names." United States v. Microsoft Corp., 56 F.3d 1448, 1463-64 (D.C. Cir. 1995) (per curiam) (internal quotation marks and citations omitted, alteration in original).
The reasons that public disclosure of litigants' identities is generally required include that "[p]ublic openness may cause all trial participants to perform their duties more
3

Case 1:19-cv-01581 Document 6 Filed 07/03/19 Page 4 of 13
conscientiously," In re U.S. Office ofPers. Mgmt. Data Sec. Breach Litig. ("OPM Breach Litig."), No. 17-5217,2019 WL2552955, at *28 (D.C. Cir. June 21, 2019) (Williams, J., concurring in part and dissenting in part) (internal quotation marks and citations omitted); such openness "induce[s] unknown witnesses to come forward with relevant testimony," id. (internal quotation marks and citation omitted); requiring parties to disclose their identities "foster[s] an appearance of fairness, thereby heightening respect for the judicial process," id. (internal quotation marks and citation omitted); and disclosure of litigants' identities is "a matter of 'basic fairness,"' id. (quoting Microsoft Corp., 56 F.3d at 1463 (alteration omitted), because a "case brought anonymously can let a winning plaintiff inflict 'disgrace' on a defendant and can let a losing plaintiff launch defamatory charges 'without shame or liability,"' id. (quoting Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005)), creating a "structural asymmetry that can tilt the scales unfairly," id.
Notwithstanding these good reasons for public openness about litigants' identities, "a district court has discretion to 'grant the 'rare dispensation' of anonymity against the world,"' id. (quoting Microsoft Corp., 56 F.3d at 1464 (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993))), and the Federal Rules recognize that privacy protections may be necessary for filings made with the Court. Specifically, in 2007, Federal Rule of Civil Procedure 5.2 was adopted in response to theE-Government Act of2002, which "requires the Supreme Court to prescribe rules 'to protect privacy and security concerns relating to electronic filing of documents and the public availability ... of documents filed electronically."' FED. R. CIV. P. 5.2, Adv. Comm. Note (2007) (quoting Pub. L. No. 107-347, § 205(c)(3)). To this end, Rule 5.2, for example, requires, "[u]nless the court orders otherwise," that certain personal information be redacted as well as that only a "minor's initials" be used, FED. R. CIV. P.
4

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5.2(a)(l}--{4), and further authorizes the court, "[f]or good cause," to issue a protective order that "require[s] redaction of additional information" or restricts "a nonparty's remote electronic access to a document filed with the court," id. 5.2(e).
Courts have employed two different but analogous multi-factor tests in determining whether a party may be permitted "to proceed anonymously" by evaluating whether "the impact of the plaintiffs anonymity" outweighs "the public interest in open proceedings" and the "fairness to the defendant." Nat 'I Ass 'n of Waterfront Emp 'rs v. Chao ("Chao"), 587 F. Supp. 2d 90, 99 (D.D.C. 2008) (RMC). The first test consists of the six factors set forth in United States v. Hubbard, 650 F.2d 293, 317-21 (D.C. Cir. 1980):
(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the document prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity ofthat party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purpose for which the documents were introduced. Doe v. CFPB ("Doe F'), No. 15-cv-1177 (RDM), 2015 WL 6317031, at *2 (D.D.C. Oct. 16, 20 15). In other cases, a "five-part test to balance the concerns of plaintiffs seeking anonymity with those of defendants and the public interest" has been applied. Eley v. District of Columbia, No. 16-cv-806 (BAH), 2016 WL 6267951, at *1 (D.D.C. Oct. 25, 2016). These five factors, drawn from James, 6 F.3d at 238, are: (1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously. Chao, 587 F. Supp. 2d at 99 (citing Yacovelli v. Moeser, No.1 :02CV596, 2004 WL 1144183, at *6-8 (M.D.N.C. May 20, 2004) (quoting James, 6 F.3d at 238)); Roe v. Doe, No.
5

Case 1:19-cv-01581 Document 6 Filed 07/03/19 Page 6 of 13

18-cv-666 (CKK), 2019 WL 1778053, *2 (D.D.C. Apr. 23, 20 19); Doe v. Teti, No. 15-mc-01380 (RWR), 2015 WL 6689862, at *2 (D.D.C. Oct. 19, 2015); Roe v. Bernabei & Wachtel PLLC, 85 F. Supp. 3d 89, 96 (D.D.C. 2015) (TSC); Doe v. US. Dep 't ofState, No. 15-cv-01971 (RWR), 2015 WL 9647660, at *2 (D.D.C. Nov. 3, 2015); Doe v. Cabrera, 307 F.R.D. 1, 5 (D.D.C. 2014) (RBW).
The James and Hubbard factors address the same general concerns regarding the "[s]trength ofthe [g]eneralized [p]roperty and [p]rivacy [i]nterests" involved and "the possibility of prejudice" to those opposing disclosure. Hubbard, 650 F.2d at 320--21. Thus, in exercising discretion ''to grant the rare dispensation of anonymity ... the court has 'a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted' ... tak[ing] into account the risk of unfairness to the opposing party, as well the customary and constitutionally-embedded presumption of openness in judicial proceedings." Microsoft Corp., 56 F.3d at 1464 (quoting James, 6 F.3d at 238 (other internal citations and quotation marks omitted)); see also OPM Breach Litig., 2019 WL 2552955, at *29 (Williams, J., concurring in part and dissenting in part) (the district court must "conduct[] an inquiry into whether the circumstances justify an 'extraordinary break' with the normal method of proceeding-openly-in federal court" (quoting Microsoft Corp., 56 F.3d at 1464)).2

2

Concern has been expressed about "a trend permitting adult plaintiffs to litigate incognito, with little

more than pro-forma gatekeeping, if any, by the district courts," OPM Breach Litig., 2019 WL 2552955, at *28

(Williams, J., concurring in part and dissenting in part), bolstered by the observation that, in comparison to a

period of time before the advent of the Internet, "[j]ust last year, in this district alone, at least six published

district court decisions featured 'John Doe' as the lead or sole plaintiff.... to say nothing of the twenty or so

other orders that permitted Doe and the like to (anonymously) level accusations against others; many of those

orders were sealed or lacked any reasoning at all," id. at *29 (footnotes omitted). Review of publicly available

orders cited as examples of those lacking reasoning, see id. at *29 n.3, reveals that the basis for the order is

amply explained in the supporting motion, which was, in some cases, unopposed. See, e.g. , Pis.' Unopposed

Mot. to Proceed Under Pseudonyms, Dora v. Sessions, 18-cv-1938 (PLF/RC) at 4-6, ECF No.1 (D.D.C. Aug.

17, 20 18) (citing the "intractably intertwined" privacy interests of a minor child who is seeking asylum and the

child's parents and pointing to the plaintiffs' reasonable fear of violence, harm, and possible death in their native

countries); Mem. Supp. Pis.' Mot. to Proceed Anonymously, Damus v. Nielsen, 18-cv-578 (JEB) at 2-4, ECF

No. 1-1 (D.D.C. Mar. 15, 2018) (asylum applicants fleeing gang violence fear that exposure oftheir identities

6

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III. DISCUSSION At this stage of the litigation, this Court is persuaded that all but one of the moving
plaintiffs have met their burden of showing that their privacy interests outweigh the public's presumptive and substantial interest in knowing the details ofjudicial litigation such that the use of pseudonyms is warranted. The moving plaintiffs' third motion contains additional detail as to each plaintiffs need for proceeding in this lawsuit under a pseudonym in order to protect her safety and be able to maintain her career in law enforcement or in the intelligence community.3

risks death or harm to themselves or their family); Min. Order, Garcia Ramirez v. U.S Immigration & Customs Enforcement, 18-cv-508 (RC) (D.D.C. Aug. 30, 2018) (granting unopposed motion). Lack of opposition does not obviate the judicial duty to inquire whether use of a pseudonym should be permitted, but certainly indicates that the circumstances are not viewed as unfair by the defendant and likely warrant granting the motion.
Moreover, concern about the rise in pseudonymous filings, OPM Breach Litig., 2019 WL 2552955, at *28 (Williams, J., concurring in part and dissenting in part), fails to acknowledge legal and technical changes that often underlie findings of good cause. Ironically, the case in which this concern was expressed arises from a 2014 cyberattack on government databases that resulted in the alleged theft of "sensitive personal informationincluding birth dates, Social Security numbers, addresses, and even fingerprint records--of a staggering number of past, present, and prospective government workers." Id at *I (per curiam); id at "'6 ("It hardly takes a criminal mastermind to imagine how such information could be used to commit identity theft."). The adoption of electronic case management systems and mandatory e-filing, combined with ever-greater access to powerful Internet search tools and publicly available databases, have many benefits for the transparency of the judicial system and for society at large. Those advances, however, also heighten the risks of misuse of a litigant's identity, which risks led to the provision ofthe E-Government Act of2002 that prompted adoption of Federal

Rule of Civil Procedure 5.2 In an analogous situation, the Supreme Court, in considering whether disclosure of state referendum
petitions that included the names and addresses of signatories violated the First Amendment, acknowledged that "[p]laintiffs explain[ed] that once on the Internet, [their] names and addresses can be combined with publicly availab le phone numbers and maps in what will effectively become a blueprint for harassment and intimidation." John Doe No. I. v. Reed, 561 U.S. 186, 190, 200 (20 I0) (internal quotation marks omitted). Yet, the Court had not been asked to examine disclosure with respect to "particularly controversial petitions," but rather the much broader question of "disclosure in general," and thus plaintiffs had failed to show that "any burdens imposed by disclosure oftypical referendum petitions would be remotely like the burdens [they] fear in this case," id. at 200--D I. As in Reed, plaintiffs who seek to proceed under pseudonyms must establish, on an individual basis, that disclosure of their identities in relation to a particular lawsuit poses a more significant burden than disclosure of a typical litigant's identity in a typical lawsuit. Indeed, the plaintiffs' first motion in this action was denied precisely because the plaintiffs failed to make this requisite showing. See Memorandum & Order, Bird v. Barr, 19-cv-I581 (D.D.C. June 6, 2019) at 4-5. In short, an increase in the number of cases in which dispensation for pseudonymous filing is deemed warranted is not, standing alone, reason to suspect that the

district court is failing to perform the requisite inquiry for its "gatekeeping" role.

3

The moving plaintiffs also posit that, because at least one named plaintiff has already been threatened

with dismissal, allegedly due to her association with this lawsuit, the plaintiffs have a concrete, reasonable fear

of retaliation if their identities are disclosed. See Pis.' Mem. at 3-6 (noting that after the Complaint was filed,

named plaintiff Erika Wesley's supervisor was told that "Ms. Wesley should be dismissed because she filed this

7

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As to the first Chao factor, the plaintiffs appear to concede that their sexual harassment claims do not involve the type of personal, intimate, and in some instances private medical or psychological details that otherwise warrant the use of a pseudonym in cases involving sexual assault. See Pis.' Mem. at 5; cf Doe 1 v. George Wash. Univ., 369 F. Supp. 3d 49, 63--64 (D.D.C. 20 19) (drawing a distinction between allegations of sexual harassment and sexual assault, and agreeing with the proposition that "sexual harassment is not typically considered a matter so highly personal as to warrant proceeding by pseudonym" (internal quotation marks, alteration, and citation omitted)); Doe v. De Amigos, LLC, No. 11-cv-1755 (ABJ), 2012 WL 13047579, at *2 (D.D.C. Apr. 30, 2012) (permitting the use of a pseudonym for a plaintiff alleging sexual assault out of concern that "graphic material about the assault .. . including details ofthe sexual assault, plaintiffs genital anatomy, hospital examinations ... and consequent psychiatric treatment" would be discussed).
Nevertheless, the moving plaintiffs posit that being publicly associated with this case poses "a very real risk of inflicting grave injury on their livelihoods, financial prospects, career opportunities, and reputation in the . .. federal law enforcement and intelligence
complaint, [because] ' [s]he is a probationary employee and she spends all her time doing her [Equal Employment Opportunity] complaints and is busy suing the bureau instead of doing her job,"' and referring to attached declarations that corroborate the plai ntiffs ' allegations of retaliation against Wesley). The pl aintiffs also cite, as evidence of retali ation, the FBI's alleged refusal to correct health insurance billing mistakes with respect to both a named plaintiff and an anonymous plaintiff in this case, arguing that "[a]lthough it's possible that the initial billing was merely a result of incompetence . .. [t]he continued billing and [a] negative credit reference suggest that these actions were retaliatory." !d. at 4. In general, however, pseudonymous treatment is not warranted unless "identification poses a risk of retaliatory physical or mental harm to the requesting party." Chao, 587 F. upp. 2d at 99 (empha is added). The retaliatory allegations asserted by the pl ainliffs are more akin to the types ofjob-related retaliation supporting their cl aims. The plaintiffs presume that retaliation aga inst a named plaintiff will dissuade other similarly situated plaintiffs from coming forward . See Pis.' Mem. at 3-6. Yet that presumption undergirds any claim of Title VII retaliation, see Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006), and falls short of warranting pseudonymous treatment. In fact, allowing a plaintiffto use a pseudonym does nothing to prevent an employer determined to retaliate against an employee from doing so, since in most cases, including the instant action, the defendant already is aware of the plaintiff employee's identity and allegations. See Pis.' Mem. at 9-10. Thus, the plaintiffs' allegations of retaliation against the named plaintiffs in this case are better treated as evidence supportive of their claims, rather than as a factor supporting pseudonymous treatment.
8

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communities," Pis.' Mem. at 5, and that "Courts in this District have allowed plaintiffs to proceed under pseudonyms based solely on the risk of reputational and career damage," id. Each moving plaintiff has now submitted a declaration detailing how her safety and career could be jeopardized if her name were to be revealed. Eight of these plaintiffs are current or prospective federal law enforcement or intelligence community employees who attest that their job requires them to remain anonymous and to minimize public exposure. For example, G.T. is a contract employee ofthe Central Intelligence Agency ("CIA") whose "work and identity must remain confidential," as must "her association with the CIA." Pis.' Mem. at 7. W.M. is "in an undercover position" and her "effectiveness [at] her job demands that she remain anonymous and not have her real identity associated with the FBI." Id. P.E. currently "works with foreign military personnel and fears her interaction with them could be impaired if her role in this case were known." Id. More saliently, she is applying for a "surveillance position" with another federal agency "in which she must keep out of the media and keep a small footprint in social media outlets." Id. at 7-8. D.C. is "a member of the intelligence community, [who] is obligated to keep her identity confidential." ld. at 8.4 D.A. is "a member ofthe intelligence community, on a counterterrorism squad" who fears that "disclosure of her identity may threaten her current employment." !d. Specifically, she claims that "public exposure could make [her] a target for foreign intelligence collection" or could, if she is reinstated as a Special Agent, prevent her from "operat[ing] confidential informants, perform[ing] undercover, or engag[ing] in other operational activities that require a protected and secure personal identity." Declaration ofD.A. ~ 4. B.A. declares that she will soon be "certified to work in an undercover capacity and has specifically been told that she

4

The Court adopts "D .C.", as used in Pis.' Mem. at 8, Compl. ~ 14, and Declaration of D.C.~ 2, as

opposed to the pseudonym "D.G.", which was included in a table accompanying the plaintiffs' motion.

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will likely be assigned undercover" and therefore "[d]isclosure of her name in this litigation could harm not only her effectiveness, but her safety." Pis.' Mem. at 8-9. S.B. is currently employed at the FBI on probationary status. Id. at 9. The sexual harassment she allegedly experienced is the subject of an internal investigation and "she has been warned not to publicly mention it." Id. B.G. asserts that she "is a former member of the ... Defense Intelligence Agency and her role must be kept confidential." Id. at 9. Further, she fears that "public exposure could directly interfere with her cases ... supporting NYC's Counter-Terrorism squad." Declaration ofB.G. ~ 4.
Three moving plaintiffs are no longer employed in federal law enforcement or the intelligence community, but assert that anonymity is required for other reasons. L.S. attests that she is currently pursuing reinstatement at the FBI, making it "imperative that [her] identity be protected, so that [she is] able to operate confidential informants, perform undercover, or engage in other operational activities that require a protected and secure personal identity." Declaration of L.S. ~ 4. In addition, she "has been the victim of a stalker," Pis.' Mem. at 8, making it "extremely important to [her] to minimize the amount of information that is publicly available" about her. Declaration ofL.S. ~ 4. C.S. is a local law enforcement employee who hopes to be reinstated at the FBI. Pis.' Mem. at 9. She fears retaliation at her current job and asserts that public information from this lawsuit may be used against her by defense attorneys. Id She also expresses concern, similar to that expressed by D.A., that if her identity were revealed, it would affect her ability to "operate confidential informants, perform undercover, or engage in other operational activities that require a protected and secure personal identity." See Declaration ofC.S. ~ 4.
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By contrast to L.S. and C.S., who have expressed concern about their physical safety, their ability to perform safely certain law enforcement jobs should their identities as plaintiffs be exposed, and whether such disclosure might compromise law enforcement operations, L.M. is a psychiatric counselor and has expressed concerned only that "disclosure of her identity could hurt her effectiveness as a counselor," Pis.' Mem. at 8, particularly when treating "patients who are mentally unstable and become obsessive due to a lack in boundaries," Declaration ofL.M. ~ 4.5 L.M.'s situation does not appear to rise to the level warranting permission to proceed using a pseudonym because her work-related fears are too far attenuated from the subject ofthis lawsuit and are, unlike L.S.'s prior experience as a victim of a stalker, too speculative. Moreover, L.M. has already been permitted to seal her address, see Memorandum & Order, Birdv. Barr, 19-cv-1581 (D.D.C. June 6, 2019) at 8, so her privacy has already been shielded to an appropriate extent.
The third Chao factor, concerning the ages of the persons whose privacy interests are sought to be protected, remains of limited relevance to this motion because the plaintiffs are not proceeding on behalf of minor children. See Yaman v. U.S. Dep 't ofState, 786 F. Supp. 2d 148, 153 (D.D.C. 2011).
The fourth and fifth Chao factors ask whether the action is against a governmental or private party and for an analysis of the risk of unfairness to the opposing party in allowing an action to proceed against it anonymously. The plaintiffs assert that allowing them to proceed under pseudonyms will have no impact on private rights, as the only defendant is a government officer named in his official capacity as head of the Department of Justice. See Pis.' Mem. at 9-10. Further, in connection with anti-discrimination complaints, the plaintiffs
The Court adopts "L.M.", as used in Pis.' Mem. at 8, the accompanying table, and Compl. ~ 17, as opposed to the pseudonym "M.L.", which was listed in the Declaration ofL.M. ~ 2.
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have already previously disclosed their identities so the defendant already "[h]as [f]ull [k]nowledge" of these facts. Id. at 9. These factors weigh in favor of allowing the plaintiffs to file under pseudonyms, because anonymity would not compromise the defendant's ability to defend the action and does not presently pose a "risk of unfairness to the opposing party." Chao, 587 F. Supp. 2d at 99. The United States District Judge to whom this case is assigned will, however, be in the best position to reassess whether anonymity continues to be both necessary and fair as the case proceeds.
In sum, the new facts and arguments presented in the moving plaintiffs' third motion to proceed under pseudonyms have demonstrated that, with the exception of L.M., these plaintiffs' significant interests in maintaining their anonymity at this early stage in the litigation are sufficient to overcome the general presumption in favor of open proceedings. See Horowitz v. Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005) ("If there is no public interest in the disclosure of certain information, 'something, even a modest privacy interest, outweighs nothing every time."' (quoting Nat 'lAss 'n ofRetired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989))). IV. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ORDERED that the plaintiffs' Motion to Proceed Anonymously is GRANTED IN PART AND DENIED IN PART, subject to any further consideration by the United States District Judge to whom this case is randomly assigned, and that the case may proceed using the pseudonyms "B.A.", "B.G.", "C.S.", "D.A.", "D.C.", "G.T.", "L.S.", "P.E.", "S.B.", and "W.M.", as designated by the sealed attachment to or, in the case of D.C., the memoranda supporting the plaintiffs' motion; and it is further
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ORDERED that the plaintiffs' motion is DENIED as to L.M.; and it is further ORDERED that the plaintiffs' motion and supporting exhibits shall remain under seal until further order of the Court; and it is further ORDERED that the defendant is prohibited from publicly disclosing the identities of "B.A.", "B.G.", "C.S.", "D.A.", "D.C.", "G.T.", "L.S.", "P.E.", "S.B.", and "W.M.", or any personal identifying information about these plaintiffs that could lead to their identification by nonparties, except for the purposes of investigating the allegations contained in the Complaint and for preparing an answer or other dispositive motion in response. SO ORDERED. Date: July 3, 2019
BERYL A. HOWELL Chief Judge
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 Case 1:19-cv-01581-KBJ Document 22 Filed 09/12/19 Page 1 of 71

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Paula Bird, Clare Coetzer, Spencer Lee, )

Lauren Rose, Danielle Snider, Erika

)

Wesley, “B.A.”, “D.A.”, “S.B.”, “D.C.”, )

“P.E.”, “B.G.”, “W.M.”, “C.S.”,

)

“L.S.”, “G.T.”,

)

)

Plaintiffs, on behalf of themselves

)

and a class of those similarly situated

)

)

v.

)

)

William Barr

)

Attorney General of the United States,

)

named in his official Capacity, and

)

head of the Department of Justice,

)

)

Defendant.

)

____________________________________)

No. 1:19-CV-1581 (KBJ) Judge Ketanji B. Jackson

FIRST AMENDED COMPLAINT

Plaintiffs, Paula Bird, Clare Coetzer, Spencer Lee, Lauren Rose, Danielle Snider, Erika

Wesley, “B.A.”, “D.A.”, “S.B.”, D.C.”, “P.E.”, “B.G.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”,

individually and on behalf of a class of others similarly situated, allege as follows:

NATURE OF ACTION

1. Plaintiffs are current and former female employees of the Federal Bureau of

Investigation who suffered sex-based discrimination when they were enrolled in the FBI

Academy’s Basic Field Training Course (“Basic Training”), which has had other names at times,

to become Agents and Intelligence Analysts.

2. As New Agent Trainees (“Agent Trainees”) and New Intelligence Analyst

Trainees (“Analyst Trainees”), Plaintiffs experienced discrimination throughout their time in

Basic Training, through the FBI’s policy of issuing disciplinary citations, called suitability

Case 1:19-cv-01581-KBJ Document 22 Filed 09/12/19 Page 2 of 71
notations, based on subjective criteria. Female Trainees received suitability notations more frequently and for more minor infractions than male Trainees. Gender stereotypes and a culture of sexism within Basic Training have caused instructors to issue suitability notations in a discriminatory manner. As a result of these suitability notations, the proposed class representatives, Plaintiffs Paula Bird, Clare Coetzer, Spencer Lee, Lauren Rose, Danielle Snider, “B.A.”, “D.A.”, “S.B.”, D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, were placed under “Suitability Review” and/or sent before disciplinary boards called Trainee Review Boards and discharged from Basic Training by the Assistant Director of the Training Division. Plaintiffs allege that, because of their sex, female Trainees were referred for Suitability Review or to the Trainee Review Board and discharged more frequently and for more minor infractions than similarly situated male Trainees. The proposed class representatives bring claims for disparate treatment and disparate impact in violation of the Title VII of the Civil Rights Act of 1964 on behalf of themselves and more than 80 similarly situated female Agent Trainees and 45 similarly situated female Analyst Trainees.
3. In addition to the discriminatory discharges of the proposed class of Analyst and Agent Trainees, the FBI discriminatorily discharged Plaintiff B.G. based on her sex without first placing her under Suitability Review or referring her to a Trainee Review Board. The FBI also discriminated against two plaintiffs with disabilities, Ms. Lee and Ms. Wesley, when it denied them reasonable accommodations for their disabilities. Further, the FBI subjected Ms. Wesley and B.A. to hostile work environments based on their sex. Ms. Wesley and B.A. were subjected to persistent, graphic, and invasive gender-based and sexual comments. These unwanted comments humiliated Ms. Wesley and B.A. so severely that they altered the conditions of Ms. Wesley’s and B.A.’s employment, respectively. The discriminatory behavior was condoned by
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FBI management and was not corrected when Ms. Wesley and B.A. reported it. Further, when Ms. Wesley reported discrimination, including through internal complaints, formal EEO complaints, and filing this lawsuit, the FBI retaliated against her.
JURISDICTION AND VENUE 4. Jurisdiction is proper in this court in that the district courts have original jurisdiction over Title VII, and Rehabilitation Act claims under 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3), because they arise under the laws of the United States and are brought to recover damages for deprivation of civil rights. 5. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3), because Defendant’s headquarters is located in this district, the personnel records relevant to this case are in this district, and the personnel practices challenged herein were directed or supervised by Defendant in this district. 6. Plaintiffs have exhausted their administrative remedies prior to bringing this suit in that each plaintiff has filed timely charges of discrimination and filed a class complaint before the Equal Employment Commission on October 23, 2018. More than 180 days have passed since the filing of the class complaint and the EEOC has taken no action on this case since that filing.
PARTIES 7. Defendant William Barr is the Attorney General of the United States, and is sued here in his official capacity as head of the Federal Bureau of Investigation. 8. Plaintiff Paula Bird is a female resident of the state of Florida, and is currently employed by the FBI as an Operational Support Technician. She was discharged from the FBI Academy as an Agent Trainee on May 1, 2018, gave first notice of discrimination to the EEOC
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on May 10, 2018, and filed a timely complaint of discrimination on May 29, 2018. Ms. Bird amended her complaint, filing a class complaint jointly with Plaintiffs Clare Coetzer, Spencer Lee, Lauren Rose, Danielle Snider, Erika Wesley, D.A., D.C., G.T., S.B., and W.M. on October 23, 2018.
9. Plaintiff Clare Coetzer is a female resident of the state of Washington. She was discharged from the FBI Academy as an Agent Trainee on June 29, 2018, gave first notice of discrimination to the EEOC on August 7, 2018, and filed a timely complaint of discrimination on September 17, 2018.
10. Plaintiff Spencer Lee, a woman with a disability, is a resident of the state of Florida. The FBI denied Ms. Lee reasonable accommodations for her disability beginning on or about January 30, 2018, and continuing through the duration of her time in Basic Training, discharged her from the FBI Academy as an Analyst Trainee on March 9, 2018. Ms. Lee gave first notice of discrimination to the EEOC on February 9, 2018 (prior to her dismissal), and filed a timely complaint of discrimination on February 14, 2018.
11. Plaintiff Lauren Rose is a female resident of the state of Florida and is currently employed by the FBI as a Staff Operations Specialist. She was discharged from the FBI Academy as an Agent Trainee on May 20, 2015, gave first notice of discrimination to the EEOC on June 1, 2015, and filed timely charges of discrimination including allegations of a pattern of discrimination against female Agent Trainees on August 3, 2015. Ms. Rose applied for reinstatement on May 25, 2015; July 27, 2015; and August 15, 2016, and her requests were denied on October 5, 2018. Ms. Rose filed a timely complaint of discrimination on December 20, 2018.
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12. Plaintiff Danielle Snider is a female resident of Washington, D.C. She was discharged from the FBI Academy as an Agent Trainee on January 31, 2018, gave first notice of discrimination to the EEOC on February 8, 2018, and filed a timely complaint of discrimination on February 10, 2018.
13. Plaintiff Erika Wesley, a woman with a disability, is a resident of the state of Arizona. During her training to become an Intelligence Analyst, the FBI subjected her to a hostile work environment based on her sex beginning in January 2018, denied her reasonable accommodations for her disability, and retaliated against her after she opposed these and other unlawful employment practices. She gave first notice of discrimination to the EEOC on February 8, 2018, while the conduct was still ongoing, and filed a timely complaint of discrimination and retaliation during Basic Training on May 8, 2018. Ms. Wesley gave first notice of retaliation in her current position on June 6, 2019, and filed a timely complaint of retaliation on July 23, 2019.
14. Plaintiff “B.A.” is a female resident of the state of New York. She was discharged from the FBI Academy as an Analyst Trainee on July 31, 2018, gave first notice of discrimination to the EEOC on November 26, 2018, and filed a timely complaint of discrimination on December 13, 2018.
15. Plaintiff “D.A.” is a female resident of the state of Maryland and is currently employed by the FBI as a Staff Operations Specialist. She was discharged from the FBI Academy as an Agent Trainee on June 29, 2018, gave first notice of discrimination to the EEOC on July 2, 2018, and filed a timely complaint of discrimination on September 21, 2018.
16. Plaintiff “S.B.” is a female resident of the state of Maryland and is currently employed by the FBI as an Information Management Specialist. She was discharged from the
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FBI Academy as an Agent Trainee on September 20, 2017, gave first notice of discrimination to the EEOC on February 13, 2018, and filed a timely complaint of discrimination on March 12, 2018.
17. Plaintiff “D.C.” is a female resident of the Commonwealth of Virginia, and is currently employed by the FBI as an Intelligence Analyst. She was discharged from the FBI Academy as an Agent Trainee on February 1, 2018, gave first notice of discrimination to the EEOC on March 2, 2018, and filed a timely complaint of discrimination on April 5, 2018.
18. Plaintiff “P.E.” is a female resident of the state of New York. She was discharged from the FBI Academy as an Agent Trainee on October 25, 2016, gave first notice of discrimination to the EEOC on April 24, 2019, and filed a timely complaint of discrimination on April 24, 2019.
19. Plaintiff “B.G.” is a female resident of the state of New York. She was discharged from the FBI Academy as an Agent Trainee on October 24, 2018, gave first notice of discrimination to the EEOC on October 31, 2018, and filed a timely complaint of discrimination on November 28, 2018.
20. Plaintiff “W.M.” is a female resident of the state of North Carolina, and is currently employed by the FBI as a Staff Operations Specialist. She was discharged from the FBI Academy as an Agent Trainee on June 29, 2018, gave first notice of discrimination to the EEOC on July 17, 2018, and filed a timely complaint of discrimination on August 10, 2018.
21. Plaintiff “C.S.” is a female resident of the state of Arizona. She was discharged from the FBI Academy as an Agent Trainee on July 14, 2017, gave first notice of discrimination to the EEOC on December 3, 2018, and filed a timely complaint of discrimination on February 6, 2019.
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22. Plaintiff “L.S.” is a female resident of the state of California. She was discharged from the FBI Academy as an Agent Trainee on October 2, 2015, and filed timely complaints of discrimination on January 16, 2016, and May 8, 2019.
23. Plaintiff “G.T.” is a female resident of the Commonwealth of Virginia. She was discharged from the FBI Academy as an Agent Trainee on February 1, 2018, gave first notice of discrimination to the EEOC on February 14, 2018, and filed a timely complaint of discrimination on March 15, 2018.
FACTUAL BACKGROUND I. DISCRIMINATORY DISCHARGE PRACTICES
24. Plaintiffs allege that the FBI discriminated against them and members of a proposed class of Agent and Analyst Trainees on the basis of sex in issuing suitability notations to female Agent Trainees and Analyst Trainees in the Academy’s under circumstances where similarly situated men did not receive suitability notations, referring them for Suitability Review or to a disciplinary board called the Trainee Review Board (previously called the New Agent Review Board) when similarly situated men were not referred for review, and ultimately discharging them from the Basic Training program, without the opportunity for retraining or retesting, when similarly situated men were permitted to graduate or return for further training. Plaintiffs allege that the FBI engaged in a pattern or practice of discrimination in terminations from Basic Training, and that the FBI’s facially neutral suitability dimensions and process for evaluating Agent Trainees and Analyst Trainees, referring them for Suitability Review and to the Trainee Review Board, and terminating them had an adverse impact on women.
25. The FBI’s Training Division administers the Basic Training program for Agent Trainees and Analyst Trainees. The Assistant Director of the Training Division is the decisionmaker for termination decisions involving Agent and Analyst Trainees.
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26. Plaintiffs seek to certify a proposed class that challenges gender bias against women in Basic Training in the issuance of suitability notations and subsequent placement in Suitability Review or referral to a Trainee Review Board that results in discriminatory terminations of female Agent and Analyst Trainees. The proposed class members fall into two groups, Agent Trainees and Analyst Trainees, which Plaintiffs seek to certify as subclasses.
A. Agent Trainee Program 27. Agent Trainees begin their training at the FBI Academy with Basic Training, a twenty-week course that contains six to eight weeks of academic courses and twelve to fourteen weeks of training and testing on law enforcement skills. The law enforcement skills portion of Basic Training consists of three “blocks”: Firearms Training, Physical Training/Defensive Tactics (one block), and Tactical Training. During these blocks of training, Agent Trainees receive training from instructors called Supervisory Special Agents. 28. In each of the three law enforcement skills training blocks, currently and at least since 2016, the Agent Trainees are evaluated using a rubric assigned to the particular block. If a Supervisory Special Agent believes that an Agent Trainee has failed to demonstrate sufficient practical skills as required in one of these units, the Supervisory Special Agent may issue a “suitability notation” on the Agent Trainee’s record. 29. In addition to suitability notations for perceived practical skills deficiencies, Agent Trainees may receive suitability notations for perceived deficiencies in the FBI’s “suitability dimensions,” which are traits the FBI deems necessary for a person to be a suitable Special Agent. The six suitability dimensions are: conscientiousness, cooperativeness, emotional maturity, initiative, integrity, and judgment. Each of these dimensions is defined in the Basic Training Requirements Document with specific examples of suitable and unsuitable behavior.
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Throughout Basic Training, Counselors (who oversee the Agent Trainees in their living quarters and are functionally part of the Trainee Management Unit) and Supervisory Special Agents evaluate the Agent Trainees using the suitability dimensions in addition to the practical skills rubric for each training unit.
30. The Tactical Training block differs from the other training blocks for several reasons. First, Trainees are simultaneously trained and evaluated in new competencies. In the academic portion of Basic Training, as well as the Firearms Training block and the Physical Training/Defensive Tactics block, a significant amount of training is provided before Agent Trainees are assessed and evaluated. In these other blocks of training, Agent Trainees have a clear transition from training to evaluation, with proficiency being tested on a clearly articulated date.
31. In the Tactical Training block, Agent Trainees receive instruction in Concepts and Tactics for Survival and Care Under Fire before moving on to practical exercises. When the Agent Trainees begin the practical application programs in Tactical Training, they are expected to apply the tactical skills, often for the first time, while simultaneously being evaluated.
32. During the practical applications programs within the Tactical Training block, Agent Trainees are “expected to demonstrate a familiar application of tactical concepts and the FBI deadly force policy.” Further, during a practical application program that involves paint gun exercises, the Agent Trainees are required to “execute the basic concepts and tactics for survival and apply appropriate judgment.” During each of the practical applications programs within Tactical Training, Supervisory Special Agents evaluate Agent Trainees using a detailed Tactical Training Rubric.
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33. The Tactical Training Rubric that applies to the practical exercises in the Tactical Training Unit evaluates Agent Trainees on critical elements and tactical principles.
34. The tactical principles on which Agent Trainees are evaluated are: (1) intelligence, (2) planning, (3) superiority of personnel and firepower, (4) continually assess the situation and adapt as necessary, (5) cover and concealment, (6) clear communications, (7) control of self, subjects, and environment, and (7) tactical judgment. Each tactical principle is defined with examples of behavior that “fails to meet standards,” “partially meets standards,” and “meets standards.”
35. Except for the “critical elements” described below, the Tactical Training Rubric does not provide guidance on when the deficiency or partial deficiency in a tactical principle should result in a suitability notation. Female Agent Trainees receive suitability notations for tactical principles in Tactical Training more frequently than similarly situated male trainees.
36. In assessing the “critical elements” in Tactical Training, Supervisory Special Agents look for the following deficiencies:
a. “Violates deadly force policy” b. “Accidentally discharges weapon” c. “Failure to apply deadly force, when appropriate and necessary, to avoid loss of life (dereliction of duty)” d. “Lacks muzzle discipline (e.g. points muzzle at teammate or instructor)” e. “Improper handling, transporting, or loading of weapon (e.g. rests finger on trigger, unable to resolve malfunction, weapon drawn when interviewing, leaves weapon unsecured” 37. According to the Tactical Training Rubric, a violation of one of the critical elements should automatically result in a suitability notation. In practice, however, not every violation of a critical element results in a suitability notation. Female Agent Trainees receive
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suitability notations for perceived violations of critical elements more frequently than similarly situated male Agent Trainees who engaged in the same behaviors.
38. Through its simultaneous practical application and evaluation, the Tactical Training block assumes that tactical skills are innate rather than learned skills. Indeed, Supervisory Special Agents who serve as instructors for this block have explicitly articulated their beliefs that the practical exercises test innate attributes that cannot be taught. Due to gender-based stereotypes that assume men have better tactical instincts, female Agent Trainees are judged more harshly than male Agent Trainees in the Tactical Training block of Basic Training. Female Agent Trainees are singled out in group tactical exercises because they are perceived as being weak, prone to failure, or not intuitively understanding law enforcement tactics. By singling out female Agent Trainees, they are put in situations far more frequently that result in suitability notations. Female Agent Trainees receive more unjustified suitability notations than similarly situated male Agent Trainees.
39. Female Agent Trainees are issued suitability notations more frequently for perceived deficiencies in the suitability dimensions than similarly situated male Agent Trainees. Such differences may be driven by gender-based stereotypes that result in behavior being adjudged “command presence” when exhibited by a male Agent Trainee who explains his choice of action that an instructor criticized, but “failure to accept responsibility” or “lack of integrity” when a female Agent Trainee provides a similar explanation.
40. As will be described in further detail below, suitability notations may result in an Agent Trainee being placed in a Suitability Review, or before a Trainee Review Board, which recommends whether the Agent Trainee should be (1) returned to Basic Training in her original class; (2) “recycled,” or returned to Basic Training in a different class and allowed to retake the
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courses or tests; or (3) discharged from Basic Training Upon information and belief, female Agent Trainees are referred to the Trainee Review Board more frequently than similarly situated male Agent Trainees. Further, female Agent Trainees who are referred for Suitability Review or to appear before the Trainee Review Board are not allowed to retrain or re-enroll in the course (including being recycled into a different class) more frequently than similarly situated male Agent Trainees. Female Agent Trainees who are referred for Suitability Review or to appear before the Trainee Review Board are discharged from Basic Training more frequently than similarly situated male Agent Trainees.
B. Analyst Trainee Program 41. Analyst Trainees begin their training at the FBI Academy with 12 weeks in Basic Training. During the first approximately six to eight weeks, Analyst Trainees and Agent Trainees attend academic courses together. When the Agent Trainees move on to law enforcement skills training units, Analyst Trainees continue with additional academic and intelligence curriculum. 42. Throughout Basic Training, Analyst Trainees are evaluated on job-related skills and suitability. Thus, throughout Basic Training, they may receive suitability notations for perceived deficiencies in the FBI’s suitability dimensions: conscientiousness, cooperativeness, emotional maturity, initiative, integrity, and judgment. These are the same suitability dimensions that apply to the Agent Trainees and each is defined in the Basic Training Requirements Document with specific examples of suitable and unsuitable behavior. Throughout Basic Training, Counselors (who oversee the Analyst Trainees in their living quarters) and Supervisory Intelligence Analysts evaluate the Analyst Trainees using the suitability dimensions.
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43. Upon information and belief, female Analyst Trainees are issued suitability notations more frequently for perceived deficiencies in the suitability dimensions than similarly situated male Analyst Trainees. Such differences may be driven by gender-based stereotypes that result in behavior being judged negatively when female Analyst Trainees fail to conform to gender norms. For example, when a female Analyst Trainees act assertively, in contravention of gender expectations, and explains her choice of action that an instructor criticized, she is adjudged as failing to accept responsibility or lacking integrity.
44. Suitability notations may result in an Analyst Trainee being placed in a Suitability Review or sent before a Trainee Review Board. Upon information and belief, female Analyst Trainees are referred for Suitability Review or to the Trainee Review Board more frequently than similarly situated male Analyst Trainees; female Analyst Trainees who are referred for discipline are not allowed to retrain or re-enroll in the course (including being recycled into a different class) more frequently than similarly situated male Analyst Trainees; and female Analyst Trainees who are referred for discipline are discharged from Basic Training more frequently than similarly situated male Analyst Trainees.
C. Discipline and Discharge Processes 45. The Training Division is comprised of three sections: Curriculum Management, which is responsible for the Academic block of instruction; the Instruction Section, which is responsible for teaching three non-academic training blocks; and the Training Services Section, which includes the Trainee Management Unit, which handles administrative matters related to trainees. The Supervisory Special Agents who serve as instructors in the non-academic blocks work in units within the Instruction Section, with a separate unit for each block of instruction. The Counselors mentioned above, who live with the Trainees in the dorms, participate in classes
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and training with them, and who, like instructors, may also issue suitability notations, are part of the Trainee Management Unit.
46. The Trainee Management Unit may decide to put Agent Trainees or Analyst Trainees who receive suitability notations through a Suitability Review. The Trainee Management Unit may initiate such a review at the suggestion of one of the instructional units, or Executive Management of the Training Division, or on its own initiative. Agent Trainees and Analyst Trainees who are placed under Suitability Review may be removed from their Basic Training curriculum during the review process.
47. During a Suitability Review, the Trainee Management Unit will provide the Training Division Executive Management with the Trainee’s suitability notations, counseling records, and other undefined sources, as well as a recommendation whether the Trainee should be able to remain in Basic Training. Upon information and belief, the Assistant Director of the Training Division will review these materials and determine whether the Trainee should continue with Basic Training (either remaining in her original class or being recycled into a different class), be discharged, or sent before the Trainee Review Board. Even without a Suitability Review, the Training Division Deputy Assistant Director may refer Agent Trainees and Analyst Trainees to the Trainee Review Board.
48. The Trainee Review Board consists of the following individuals: the Deputy Assistant Director who serves as chair; three Section Chiefs (the Curriculum Management Section Chief, the Instruction Management Section Chief, and the Training Services Section Chief), who serve as board members; the Trainee Management Unit Chief, who serves as a board member; one minority representative at the GS-15 level, who serves as a board member; and at times, an Office of General Counsel representative, who serves as legal advisor.
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49. The purpose of the Trainee Review Board is to create a factual record and to provide a recommendation to the Assistant Director of the Training Division about whether to permit the trainee to remain in her Basic Training class and graduate with her class, recycle the Trainee to a different class, or to discharge the trainee. The Assistant Director of the Training Division makes the determination whether to discharge the trainee. If the trainee is discharged, then that decision is reviewed by the Assistant Director of the Administrative Services Division.
50. The Deputy Assistant Director determines who may attend and serve as witnesses for the Trainee Review Board. The attendees and witnesses may or may not include the trainee’s classmates, instructors, the Trainee Management Unit Chief, Supervisory Special Agents, Counselor(s), and any other individuals the Deputy Assistant Director deems relevant.
51. The Basic Training Requirements document provides that Agent Trainees and Analyst Trainees may be discharged from Basic Training for failure to meet the proficiency standards (such as those outlined in the Tactical Training Rubric), exhibiting behavior inconsistent with the suitability dimensions, failure to adhere to the Standards of Conduct (a set of ethical standards), and failure to adhere to the FBI Academy Honor Code (a set of ethical standards that relates specifically to the Academy and its training components).
52. Alternatively, Agent Trainees and Analyst Trainees may be “recycled,” that is, returned to Basic Training and allowed to retake the courses or tests. The Basic Training Requirements document describes the circumstances under which an Agent Trainee or Analyst Trainee may be recycled for: medical reasons, excessive absences or absences from mandatory training sessions in the physical training, defensive tactics, and firearms blocks; failing the firearms test or re-test; or failing the physical fitness test. The Basic Training Requirements
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document provides that New Agent Trainees who fail the Tactical Skills Test may re-take the test once, unless their failure was “egregious.”
53. The decisionmakers apply internal biases against women in applying the proficiency standards and suitability dimensions to female Agent Trainees and Analyst Trainees. As result female Agent Trainees and Analyst Trainees are allowed to be recycled into Basic Training less frequently than similarly situated male Agent Trainees and Analyst Trainees. Further, female Agent Trainees and Analyst Trainees are discharged from Basic Training following a Suitability Review or Trainee Review Board more frequently than male Agent Trainees and Analyst Trainees.
54. Trainee Management Unit management and instructors actively seek out derogatory information, or “gossip,” about female trainees from other instructors and counselors in order to levy additional suitability notations against female trainees. However, readily observed violations of the Requirements Document committed by male Trainees are ignored. II. AGENT TRAINEE SUBCLASS ALLEGATIONS
55. Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, (“Agent Trainee Plaintiffs”) bring this action pursuant to 42 U.S.C. § 2000(e), et seq. and seek certification of a subclass pursuant to Rule 23, Fed. R. Civ. P, comprised of all Agent Trainees who received suitability notations and were discharged from the FBI Academy’s Basic Training after appearing before a Trainee Review Board or equivalent, or after a Suitability Review (“Agent Trainee Subclass”) from April 17, 2015, through the first day of trial in this action. Plaintiffs are members of the subclass they seek to represent.
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56. Defendant’s policy, pattern, or practice of discrimination in discharging Agent Trainees based on sex, or Defendant’s practice having a disparate impact based on sex, operated within 45 days of the first complaint of discrimination and unlawfully caused the discharge of one or more named plaintiffs.
57. Agent Trainee Plaintiffs reserve the right to revise the definition of the subclass based upon information learned after the filing of this action.
58. Agent Trainee Plaintiffs bring these claims on behalf of themselves and the Agent Trainee Subclass under Federal Rules of Civil Procedure 23(a), (b)(2) for their requests for declaratory and injunctive relief only, and (b)(3) for their requests for damages. The proposed Agent Trainee Subclass satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those rules.
59. Numerosity: The proposed Agent Trainee Subclass is so numerous that the joinder of all such persons is impracticable, and the disposition of their claims as a subclass will benefit the parties and the Court. Upon information and belief, more than 50 Agent Trainees would qualify as members of the proposed subclass. Membership in the subclass is ascertainable from the FBI’s Basic Training records.
60. Commonality: Plaintiffs and all members of the Agent Trainee Subclass have been subjected to termination using the unlawful practices alleged herein and, therefore, one or more questions of law or fact are common to the Agent Trainee Subclass. These common questions include, but are not limited to, the following:
a. whether the FBI’s common operating practices and procedures in its Basic Field Training Course discriminate against female Agent Trainees;
b. whether the FBI’s common policies have had an adverse impact on the subclass, and if so, whether such impact can be justified by business necessity;
c. whether the FBI has acted intentionally to discharge female Agent Trainees from the Basic Field Training Course because of their sex;
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d. whether the Agent Trainee Subclass may obtain injunctive and other equitable remedies, as well as an award of damages. 61. Typicality: Agent Trainee Plaintiffs and members of the Agent Trainee Subclass were subjected to the same unlawful policies, practices, and procedures and sustained similar losses, injuries, and damages. All subclass members were subjected to the same training practices by the FBI in the Academy’s Basic Field Training Course, as alleged herein, that resulted in their discriminatory discharge from the program. Agent Trainee Plaintiffs’ claims are therefore typical of the claims that could be brought by any member of the Agent Trainee Subclass, and the relief sought is typical of the relief that could be sought by each member of the Agent Trainee Subclass in separate actions. 62. Adequacy of Representation: Agent Trainee Plaintiffs are able to fairly and adequately protect the interests of all members of the Agent Trainee Subclass, as they are challenging the same practices as the class as a whole, and there are no known conflicts of interest between Agent Trainee Plaintiffs and the members of the Agent Trainee Subclass. Plaintiffs have retained counsel who have extensive experience with the prosecution of discrimination claims and complex class-action litigation. 63. This action is properly maintainable as a class action under Rule 23(b)(2), Fed. R. Civ. P., because the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 64. The class action is also properly maintainable pursuant to Rule 23(b)(3) because the questions of law and fact common to members of the class predominate over questions affecting only individual members and a class action is superior to other available methods for the fair and efficient resolution of this controversy.
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65. Pursuit of this action as a class would provide the most efficient mechanism for adjudicating the claims of Agent Trainee Plaintiffs and the members of the Agent Trainee Subclass. III. ANALYST TRAINEE SUBCLASS ALLEGATIONS
66. Plaintiffs Spencer Lee and B.A. (“Analyst Trainee Plaintiffs”) bring this action pursuant to 42 U.S.C. § 2000(e), et seq. and seek certification of a subclass pursuant to Rule 23, Fed. R. Civ. P, comprised of all Analyst Trainees who received suitability notations based on suitability dimensions and were discharged from the FBI Academy’s Basic Training after appearing before a Trainee Review Board or equivalent, or after a Suitability Review (“Analyst Trainee Subclass”) from the April 17, 2015, through the first day of trial in this action. Plaintiffs are members of the subclass they seek to represent.
67. Defendant’s policy, pattern, or practice of discrimination in discharging Agent Trainees based on sex, or Defendant’s practice having a disparate impact based on sex, operated within 45 days of the first complaint of discrimination and unlawfully caused the discharge of one or more named plaintiffs.
68. Plaintiffs Spencer Lee and B.A. reserve the right to revise the definition of the subclass based upon information learned after the filing of this action.
69. Plaintiffs Spencer Lee and B.A. bring these claims on behalf of themselves and the Analyst Trainee Subclass under Federal Rules of Civil Procedure 23(a), (b)(2) for their requests for declaratory and injunctive relief only, and (b)(3) for their requests for damages. The proposed Analyst Trainee Subclass satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those rules.
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70. Numerosity: The proposed Analyst Trainee Subclass is so numerous that the joinder of all such persons is impracticable, and the disposition of their claims as a subclass will benefit the parties and the Court. Upon information and belief, more than 50 Analyst Trainees would qualify as members of the proposed subclass. Membership in the subclass is ascertainable from the FBI’s employment records.
71. Commonality: Plaintiffs Spencer Lee and B.A. and all members of the Analyst Trainee Subclass have been subjected to termination using the unlawful practices alleged herein and, therefore, one or more questions of law or fact are common to the Analyst Trainee Subclass. These common questions include, but are not limited to, the following:
a. whether the FBI’s common operating practices and procedures in its Basic Field Training Course discriminate against female Analyst Trainees;
b. whether the FBI’s common policies have had an adverse impact on the subclass, and if so, whether such impact can be justified by business necessity;
c. whether the FBI has acted intentionally to discharge female Analyst Trainees from the Basic Field Training Course because of their sex;
d. whether the Analyst Trainee Subclass may obtain injunctive and other equitable remedies, as well as an award of damages. 72. Typicality: Plaintiffs Spencer Lee and B.A. and members of the Analyst Trainee Subclass were subjected to the same unlawful policies, practices, and procedures and sustained similar losses, injuries, and damages. All subclass members were subjected to the same training practices by the FBI in the Academy’s Basic Field Training Course, as alleged herein, that resulted in their discriminatory discharge from the program. Plaintiffs Spencer Lee’s and B.A.’s claims are therefore typical of the claims that could be brought by any member of the Analyst Trainee Subclass, and the relief sought is typical of the relief that could be sought by each member of the Analyst Trainee Subclass in separate actions. 73. Adequacy of Representation: Plaintiffs Spencer Lee and B.A. are able to fairly and adequately protect the interests of all members of the Analyst Trainee Subclass, as they are
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challenging the same practices as the subclass as a whole, and there are no known conflicts of interest between Spencer Lee and B.A. and the members of the Analyst Trainee Subclass. Plaintiffs have retained counsel who have extensive experience with the prosecution of discrimination claims and complex class-action litigation.
74. This action is properly maintainable as a class action under Rule 23(b)(2), Fed. R. Civ. P., because the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
75. The class action is also properly maintainable pursuant to Rule 23(b)(3) because the questions of law and fact common to members of the class predominate over questions affecting only individual members and a class action is superior to other available methods for the fair and efficient resolution of this controversy.
76. Pursuit of this action as a class would provide the most efficient mechanism for adjudicating the claims of Plaintiffs Spencer Lee and B.A. and the members of the Analyst Trainee Subclass. IV. NAMED PLAINTIFF ALLEGATIONS
PAULA BIRD 77. Plaintiff Paula Bird, a woman, graduated summa cum laude from the University of Central Florida at the age of nineteen, with a Bachelor of Science in Psychology and a Certificate in Behavioral Forensics. While she was at the University of Central Florida, Ms. Bird interned over the summer with the FBI in Washington, D.C. She subsequently continued her internship with the FBI in the Maitland Resident Agency of the Tampa Division for a year prior to attending law school. Ms. Bird graduated in the top 10% of her class from Barry University Dwayne O’Andreas School of Law, after which she practiced law for over six years.
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78. In 2018, Ms. Bird attended Basic Training as an Agent Trainee. During Basic Training, Ms. Bird passed the physical fitness test, all academic tests, the pistol and carbine qualifications, the defensive tactics test, and other performance tests and evaluations.
79. Ms. Bird received seven suitability notations, all from the Tactical Training block. Of the seven suitability notations, three were wholly unrelated to tactical performance: she was disciplined for not having the appropriate equipment with her upon arrival at training exercise.
80. The other four suitability notations were for tactical mistakes. For at least three of these tactical mistakes, Ms. Bird received a suitability notation while a male peer who acted in the same manner did not receive a suitability notation. For example, then-Tactical Training Unit Chief Randall Glass issued Ms. Bird a suitability notation for applying appropriate deadly force to a paper target holding a firearm during a training exercise because neither she, nor her male partner, had a flashlight out. Mr. Glass chastised Ms. Bird (but not her male partner) for not using a flashlight before entering the room and stated that “for all [she] knew, the paper target could have been holding a remote control.” At least one male Agent Trainee made the same “mistake” in front of Mr. Glass during the same exercise on the same day and was not issued a suitability notation.
81. After receiving these suitability notations, the Trainee Management Unit initiated a Suitability Review and Ms. Bird was sent before a Trainee Review Board. Of the Agent Trainees in Ms. Bird’s class, only Ms. Bird, another female Agent Trainee, and a male Agent Trainee were sent before the Trainee Review Board. Ms. Bird and the other female Agent Trainee were discharged without being allowed to take the tactics test, while the male Agent Trainee was permitted to take the test and graduate. The male Agent Trainee who was permitted to graduate was later told by their class supervisor, Supervisory Special Agent Christopher
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Neuguth, that he was only sent to the Trainee Review Board because the board was concerned that it would appear that the Academy was targeting women if they did not have at least one male Agent Trainee appear before the Trainee Review Board. The male Agent Trainee was never in danger of being discharged and was only required to appear in front of the Trainee Review Board to create a false appearance of fairness.
82. The Assistant Director of the Training Division discharged Ms. Bird on May 1, 2018, three weeks before graduation. Ms. Bird was not offered any sort of remedial tactical training, as is the standard with other units in the Basic Training curriculum. Additionally, prior to her discharge, Ms. Bird was advised that the Human Resources Department would offer her one support staff position (after reviewing her resume) which she could either accept or reject.
CLARE COETZER 83. Clare Coetzer, a woman, earned a Bachelor of Arts in Psychology, a Master of Arts in Social Work, and obtained a clinical license to practice independently. Ms. Coetzer worked as a social worker for 5 years, during which she successfully helped pilot a new program in Monterey County, CA, where mental health professionals partnered with law enforcement to address mental health crises in the field. 84. In 2018, Ms. Coetzer attended Basic Training as an Agent Trainee. During Basic Training, Ms. Coetzer passed the physical fitness test on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations. 85. Ms. Coetzer received four suitability notations, all from the Tactical Training Unit for deficiencies noted during tactical training scenarios. Two suitability notations were for scenarios that the majority of the class failed.
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86. Ms. Coetzer was treated less favorably than male colleagues who received the same number of suitability notations. During a meeting with the primary tactical instructor, Supervisory Special Agent Paul Herron, and the class counselor, Mr. Herron told a male classmate with four suitability notations that he would “be fine” and “to keep working hard, and not worry about it.” Only minutes after, Mr. Herron told Ms. Coetzer that her four suitability notations were “a lot” and that “people don’t typically graduate with four SNs.” This same male classmate later failed his tactics exam twice; and instead of following protocol for an automatic discharge from Basic Training, he was recommended for a Trainee Review Board in an effort to retain him despite his failures.
87. On June 12, 2018, Ms. Coetzer overheard two male colleagues question their suitability notations to the Mr. Herron and their suitability notations were rescinded. No such reconsideration was afforded to female trainees. If anything, questioning their suitability notations resulted in being issued additional suitability notations.
88. On June 18, 2018, Ms. Coetzer was informed by her counselor that she had been placed under Suitability Review for tactical deficiencies. Four of the nine women in Ms. Coetzer’s class were recommended by Tactical Training Unit instructors for a Suitability Review, whereas only two of the thirty men in her section were recommended by Tactical Training Unit instructors for a Suitability Review.
89. Although Ms. Coetzer had demonstrated improvement, Ms. Coetzer was sent before the Trainee Review Board, without a chance to take the tactics exam. When Ms. Coetzer asked Mr. Herron for feedback on how she could continue to improve, he responded that there was nothing she could do. He told her she was “not aggressive enough or decisive enough” and remarked, “You can’t teach judgement.”
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90. After Ms. Coetzer appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged Ms. Coetzer from Basic Training on June 29, 2018. She was not offered any sort of remedial tactical training, as is the standard with other units in the BFTC curriculum.
SPENCER LEE 91. Plaintiff Spencer Lee, a woman with a disability, holds a bachelor’s degree in Psychology and Criminal Justice, a Master’s degree in Clinical Mental Health Counseling, and is currently studying Biomedical Sciences at the University of South Florida while preparing for enrollment in Medical School. Prior to attending Basic Training, Ms. Lee was employed by the FBI as an Investigative Specialist for the Special Surveillance Group in Kansas City. Ms. Lee experienced sexual harassment while working in the FBI office in Kansas City, and filed an internal complaint. As part of the resolution of that complaint, Ms. Lee entered Basic Training as an Analyst Trainee, in part to get away from the hostile work environment in Kansas City. 92. Ms. Lee has debilitating migraines which substantially limit major life activities and substantially limit major bodily functions when they are active. These migraines can be triggered by certain smells and dehydration, and her symptoms are exacerbated if Ms. Lee is hungry. Prior to attending Basic Training, Ms. Lee followed the protocol for requesting reasonable accommodations, including permission to have a personal refrigerator in her dormitory room to store her medications, to carry water with her to class, and to eat small amounts of food outside of designated mealtimes. Although the FBI initially granted such reasonable accommodations, it did not adequately follow through and later denied Ms. Lee her accommodations. 93. In 2018, Ms. Lee. attended Basic Training as an Analyst Trainee. During Basic Training, Ms. Lee passed all of her academic tests and job-related requirements.
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94. On or about February 7, 2018, Ms. Lee’s counselor, Intelligence Analyst Vanessa Bouey, conducted an inspection of Ms. Lee’s dormitory and disciplined her for having a refrigerator and storing medicine. After the inspection, Ms. Bouey addressed Ms. Lee’s classroom, stating that she had found “contraband” in Ms. Lee’s and Ms. Wesley’s rooms. As will be described below, Ms. Wesley has a disability and had requested reasonable accommodations. When Ms. Bouey stated that she found contraband in their rooms, she was referring to Ms. Lee’s and Ms. Wesley’s medical accommodations. Although Ms. Bouey found prohibited items in other rooms, she named only Ms. Lee and Ms. Wesley in this lecture. In subjecting Ms. Lee to ridicule and discipline for storing her medication in a personal refrigerator, Ms. Bouey effectively denied her reasonable accommodations. Ms. Lee suffered adverse health effects from the denial of these accommodations, which required outside medical intervention and treatment.
95. Ms. Lee received three suitability notations for minor or falsely claimed infractions of the suitability dimensions. First, on January 30, 2018, Ms. Lee received a suitability notation from her field counselor, Special Agent Daniel Zwiesler, for failing to swallow a small bit of food she was chewing prior to entering the classroom. Although Defendant had agreed that it would allow Ms. Lee to eat small amounts several times per day and frequently drink water, where eating in the classrooms was otherwise barred, it denied her this accommodation when Mr. Zwiesler disciplined her for eating. When she contested the suitability notation, Mr. Zwiesler accused her of having a lack of candor. Second, February 22, 2018, Ms. Lee received a suitability notation for entering the classroom carrying water in a sealed container, which Mr. Zwiesler and Ms. Lee’s counselor, Intelligence Analyst Vanessa Bouey, arbitrarily determined was not spill-proof and therefore violated the rules. Again, Ms.
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Lee was denied her reasonable accommodation. On March 1, 2018, Ms. Lee received her third suitability notation for asking for her first duty assignment to be changed to a different location.
96. Ms. Lee received these suitability notations for minor infractions and misunderstandings, while similarly situated male Analyst Trainees did not receive suitability notations for more severe infractions, including the pervasive sexual harassment of Plaintiff B.A.
97. After Ms. Lee’s third suitability notation, Trainee Management Unit Chief Kellie Holland placed Ms. Lee under Suitability Review. On March 8, 2018, Ms. Lee was required to appear before a Trainee Review Board. Ms. Bouey testified before the Trainee Review Board, that Ms. Lee had “contraband” in her room, again referring to Ms. Lee’s reasonable accommodations. The Board recommended Ms. Lee be discharged from Basic Training. On March 9, 2018, the Acting Assistant Director of the Training Division discharged Ms. Lee from Basic Training.
LAUREN ROSE 98. Plaintiff Lauren Rose, a woman, graduated from Liberty University in 2007 with a Bachelor of Science in Psychology and Communications. Ms. Rose entered on duty with the FBI in September 2009, where she worked in professional staff positions for more than five years. 99. In 2015, Ms. Rose attended Basic Training (then called “New Agents Training”) as an Agent Trainee. During Basic Training, Ms. Rose passed all academic exams, the physical fitness test, pistol and carbine firearms qualifications, and defensive tactics tests without incident. 100. Ms. Rose received three suitability notations, all from the Tactical Training Unit (then called the Practical Applications Unit). Several male trainees made the same, and more egregious, tactical mistakes but were not written up or counseled accordingly.
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101. After her third suitability notation, Ms. Rose was placed under Suitability Review and a Trainee Review Board (then called the New Agent Review Board) was convened. On May 19, 2015, Ms. Rose appeared before the Trainee Review Board and on May 20, 2015, the Assistant Director of the Training Division discharged Ms. Rose from Basic Training, just one week prior to graduation. When she asked if she could be recycled, Ms. Rose was informed the Academy did not recycle for tactics. However, within that same fiscal year, another male Agent Trainee had been recycled for issues arising from the tactical portion of the training and was later allowed to graduate.
102. On May 25, 2015, Ms. Rose wrote an email to then-Director James Comey informing him of the prejudicial and discriminatory practices running rampant at the FBI Academy. She requested reinstatement and stated that she was not permitted to meet with the Assistant Director to learn why she was discharged rather than recycled. In his response, Director Comey denied such discrimination was occurring and instead suggested she use her “pain” to reflect on her strengths and weaknesses. On June 5, 2015, Ms. Rose sent letters to then-Assistant Directors Owen Harris (Training Division) and James Turgal (Human Resources Division) notifying them of the unequitable treatment of female trainees at the FBI Academy. No response was received. Ms. Rose filed a timely complaint of discrimination on August 3, 2015.
103. On July 27, 2015, Ms. Rose applied for Reinstatement pursuant to FBI Special Agent Reinstatement Policy 0323D 8.8. Included in her request for reinstatement was notification of the uneven distribution of suitability notations. On August 15, 2016, Ms. Rose again requested consideration for reinstatement via FBI Corporate policy by sending a formal letter to then-Assistant Director of Training Division David Resch. Ms. Rose has communicated
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with Human Resources Division and Training Division, in writing, about her request for reinstatement several times over the course of more than three years. On October 5, 2018, Ms. Rose was effectively denied her request for reinstatement by Training Division Counsel Amy Armstrong. Ms. Rose subsequently filed a timely complaint of retaliation and discrimination on December 10, 2018.
DANIELLE SNIDER 104. Plaintiff Danielle Snider, a woman, earned a Bachelor of Science degree in Behavioral Science and Arabic from the United States Air Force Academy. She served on active duty in the United States Air Force for four years, during which she obtained the rank of Captain. After that, Ms. Snider earned a Master of Arts from the University of Kansas in Political Psychology and African Studies. Ms. Snider is currently an Air Force Reserve Captain. Immediately prior to starting at the FBI, she worked at the National Counterterrorism Center (NCTC) as an Intelligence Analyst and is a graduate of the Central Intelligence Agency Sherman Kent Career Intelligence Analyst Course and an honor graduate of the U.S. John F. Kennedy School of Special Warfare Psychological Operations Qualification Course. 105. In 2017, Ms. Snider attended Basic Training as an Agent Trainee. During Basic Training, Ms. Snider passed the physical fitness test on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, and other performance tests and evaluations. 106. Ms. Snider received five suitability notations, all from the Tactical Training Unit. Ms. Snider observed male Agent Trainees make some of the same alleged mistakes for which she earned suitability notations, but these men did not receive suitability notations. Ms. Snider had no previous adverse marks on her record during Basic Training, and was told by a Supervisory Special Agent that she was in the top 25 out of her class of 150 students.
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107. After Ms. Snider received these suitability notations, the Trainee Management Unit initiated a Suitability Review on January 30, 2018, and on January 31, 2018, the Executive Management of the Training Division convened a Trainee Review Board. After Ms. Snider appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged Ms. Snider two weeks prior to graduation for failure to demonstrate tactical judgement during the tactical skills portion of her training.
108. Of the approximately 30 female Agent Trainees and approximately 120 male Agent Trainees in Ms. Snider’s class, five women and one man appeared before the Trainee Review Board. All five women were discharged. The only Agent Trainee in Ms. Snider’s class who was allowed to graduate after appearing before the Trainee Review Board was a man. Students and instructors who observed the male Agent Trainee’s mistakes described them as “so egregious,” and outside the norm of lawful law enforcement behavior. At least two other male Agent Trainees had received the same number or more suitability notations than the female Agent Trainees who were ultimately discharged, but these male Agent Trainees were not brought before the Trainee Review Board and were allowed to graduate from Basic Training.
109. Ms. Snider was not given the opportunity to retrain or be recycled into a different class. Members of the Trainee Review Board told Ms. Snider and the four other female Agent Trainees that there was not enough time to retrain them before graduation. However, when several male New Agent Trainees in her class failed the tactical training final exam, they were given additional training and allowed to retest less than two weeks before graduation. In addition, a male Agent Trainee in Ms. Snider’s class failed the physical fitness test, an academic test, and the Tactical Training test, but was not submitted a to review board and was allowed to graduate.
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ERIKA WESLEY 110. Plaintiff Erika Wesley, a woman with a disability, earned a Bachelor of Business Administration from the College of William and Mary. Ms. Wesley earned a Master’s Degree in Criminology from the University of Essex in England at age 21, where she also worked for the Disabled Students Services Department. Ms. Wesley completed one year of Law School at Pepperdine University prior to accepting a position with the FBI. Ms. Wesley worked for the FBI for six years, earning several performance awards and promotions. Ms. Wesley voluntarily separated from the FBI in 2010, just prior to the birth of her first child. Ms. Wesley applied for reinstatement in 2014, and received a conditional offer of employment in 2016. 111. Ms. Wesley has a medical condition that substantially limits major life activities and major bodily functions when it is active or “flaring up.” It impairs her ability to sit for long periods of time, causes migraines, severe allergies, and other debilitating symptoms. Prior to attending Basic Training, Ms. Wesley followed the protocol for requesting reasonable accommodations, including permission to place a personal refrigerator in her dormitory room and permission to place a medical grade air purifier in her dormitory room. Although the FBI initially granted such reasonable accommodations, it did not adequately follow through and later denied Ms. Wesley her accommodations. 112. In 2018, Ms. Wesley attended Basic Training as an Analyst Trainee. During Basic Training, Ms. Wesley passed all final tests and evaluations. She demonstrated outstanding academic and professional performance, and did not receive any suitability notations for failing to meet objective standards. 113. Meanwhile, however she was subjected to pervasive harassment based on her sex, and retaliation after she reported discrimination that she witnessed on multiple occasions.
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114. Ms. Wesley was subjected to a hostile work environment based on her sex. Ms. Wesley’s Counselor repeatedly claimed that Ms. Wesley had become pregnant while engaged in an extramarital affair during her time at the Academy, which was completely untrue. Ms. Wesley was subjected to frequent inappropriate sexually-charged commentary by male instructors and counselors, including frequent comments about women needing to take their birth control to control their moods, inviting female trainees over to a male instructor’s home for special “after hours” attention, and openly disparaging women.
115. Several of Ms. Wesley’s instructors in the Tactical Training Unit responded with derision when Ms. Wesley or any other female Analyst Trainee asked a question, but usually responded genially when a male Analyst Trainee asked a question. Ms. Wesley was frequently subjected to intimidation tactics and threatened with dismissal over minor and even fabricated incidents failing to rise to the level of suitability violations, where male Agent Trainees were granted leniency for serious violations of suitability standards. For example, on one occasion, Supervisory Intelligence Analyst Brian Moses threatened Ms. Wesley with a suitability notation for tying her uniform jacket around her waist, claiming that this was not an approved manner to wear her uniform. Ms. Wesley observed that instructors would often reprimand female Analyst Trainees over behavior that did not violate any job-related proficiencies or suitability dimension and they would use the Trainees’ responses to issue suitability notations. For example, if the female Analyst Trainees did not contest the feedback she was accused of being too deferential, but if she contested the feedback she was accused of being insubordinate.
116. In addition, Ms. Wesley was publicly harassed about her physical limitations and disabilities. On several occasions, Ms. Wesley’s field counselor, Mr. Zweisler, questioned her derisively about the small bag she took to class containing allergy medications, which Ms.
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Wesley needed to keep on her person in case of a life-threatening allergic reaction. He accused her of violating the rules for bringing it and when Ms. Wesley explained the need for it, he told her to keep the medications down the hall. In subjecting Ms. Wesley to ridicule and threats for carrying her bag of medications to class, Mr. Zwiesler effectively denied her a reasonable accommodation.
117. Ms. Wesley reported discrimination on several occasions. First, on or about January 16, 2018, she informed her counselor, Intelligence Analyst Vanessa Bouey that Mr. Zwiesler had challenged her disability accommodations in an abusive manner that humiliated Ms. Wesley. Ms. Wesley also informed Ms. Bouey that she had a medical issue that required her to use the bathroom more frequently than the allotted breaks.
118. Rather than address Ms. Wesley’s complaints, the FBI retaliated against her. After this conversation, Ms. Bouey publicly referenced Ms. Wesley’s accommodations on multiple occasions in a way that Ms. Wesley felt violated her privacy and added unnecessary physical and mental stress to her training. In addition. shortly after Ms. Wesley complained to Ms. Bouey about Mr. Zwiesler, he began ignoring her. He would not make eye contact with her and would avoid interacting with her. Upon information and belief, he was ignoring her because he had learned of her complaint about his discriminatory treatment.
119. On or about February 7, 2018, Ms. Bouey conducted an inspection of Ms. Wesley’s dormitory and required her to unplug her refrigerator and remove her medical grade air purifier—thereby denying her reasonable accommodations. Ms. Wesley suffered adverse health effects from the denial of these accommodations, which required outside medical intervention and treatment. After the inspection, Ms. Bouey addressed Ms. Wesley’s classroom, stating that she had found “contraband” (referring to their medical accommodations) in Ms. Wesley’s and
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Ms. Lee’s rooms. Although Ms. Bouey found prohibited items in other rooms, she named only Ms. Lee and Ms. Wesley in this lecture. Ms. Wesley’s HIPAA-protected medical information was repeatedly disclosed in classroom settings as a way to mock and intimidate her.
120. The next day, Ms. Wesley reported to Supervisory Intelligence Analyst Brian Moses that Ms. Bouey had removed her accommodations and made inappropriate comments about Ms. Wesley and her accommodations. Ms. Wesley also explained that she thought Ms. Lee was being targeted based on her disability and gender. Mr. Moses told Ms. Wesley he would speak to Ms. Bouey. Shortly after that, however, Ms. Bouey began disciplining Ms. Wesley for petty infractions. For example, she supported Mr. Moses when he issued Ms. Wesley a suitability notation for having her phone in the lobby of the class building after-hours, Ms. Bouey had previously given Ms. Wesley permission to use her phone in the building after-hours and other students routinely did so without punishment. Further, Ms. Bouey disparaged Ms. Wesley to her classmates, even telling one student not to trust Ms. Wesley and that Ms. Wesley was “trouble.”
121. In the beginning of March 2018, Ms. Wesley reported misconduct further up the chain of command when she told Trainee Management Unit Chief Kellie Holland that she had witnessed Mr. Zwiesler targeting and harassing Ms. Lee. Ms. Wesley told Ms. Holland that some of the male counselors and instructors were very unprofessional around female Trainees, often treating them worse than male Trainees, and that she thought there was rampant discrimination. In response, Ms. Holland stated that Ms. Wesley had not been on her “radar” prior to that day. Instead of Ms. Holland treating the blatant EEO violations with any seriousness or concern, Ms. Holland threatened Ms. Wesley by stating that her coming forward would not go without consequence.
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122. Ms. Holland followed through with her threat of retaliation when she personally issued Ms. Wesley a suitability notation, just days before graduation. Ms. Holland informed Ms. Wesley that she had proactively asked Ms. Wesley’s counselor, supervisor and instructors for derogatory information about Ms. Wesley. Ms. Holland misconstrued a statement Ms. Wesley had made two months prior to cite Ms. Wesley for insubordination and lack of professional judgement. When Ms. Wesley challenged Ms. Holland on the accuracy of the statement, Ms. Holland quipped “Is it more important to be right or to be heard? Hmmm?”
123. After Ms. Wesley graduated from Basic Training, she was assigned to worked as an Intelligence Analyst in the FBI’s Phoenix Division beginning in April 2018. Due to her disability, Ms. Wesley requested, and received, the following reasonable accommodations that have permitted her to successfully complete her work as an Intelligence Analyst:
a. an ergonomic workstation; b. an alternative work schedule, starting at 6 am; and c. permission to keep an ERAS (secure FBI laptop) at home so that she can
telework when necessary. 124. Ms. Wesley further engaged in protected activity when she filed her EEO charge of discrimination on May 18, 2018, and when she filed this lawsuit on May 29, 2019. Although the Complaint was filed under seal pending resolution of the request by some plaintiffs to proceed anonymously, a copy of the Complaint, in which Erika Wesley is named, was sent via email to counsel for the FBI who had been handling the internal EEO complaints. Further, Ms. Wesley appeared and was named in media coverage about the case on May 29, 2019. 125. In the two days following Ms. Wesley’s filing of this case, one of her superiors, Acting Assistant Special Agent in Charge Andrew Braun, made explicit threats to terminate her because of her participation in this lawsuit. On May 29, 2019, Mr. Braun spoke to Ms. Wesley’s supervisor, Supervisory Intelligence Analyst Mary Martinez about potential changes to Ms.
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Martinez’s position. Understanding that a re-organization might be underway, Ms. Martinez expressed a desire to have Ms. Wesley on whatever squad she was supervising. In response, Mr. Braun stated:
That is not happening. That is not what I mean. She is a probationary employee and she spends all her time doing her EEO complaints and is busy suing the bureau instead of doing her job. She needs to go. 126. On May 31, 2019, Mr. Braun asked Acting Supervisory Intelligence Analyst Megan Eckstein, what she thought of someone new who “spent all their time researching EEO policies and filing lawsuits.” 127. In the next few weeks, Ms. Wesley was subjected to several adverse employment actions. On June 4, 2019, Mr. Braun called a meeting of intelligence analysts in the Phoenix Division and announced that Ms. Wesley would be assigned to work on another squad. Two days later, on June 6, 2019, A/ASAC Braun sent out an email which documented additional changes to the intelligence program. In that document, Ms. Wesley’s specific position, one that no other employees in that Division hold, was described as being “eradicated.” Ms. Wesley was transferred to work under Supervisory Intelligence Analyst Kelly Burzacchi on June 9, 2019, but was not assigned enough work in her new position to keep her occupied. When she volunteered to work on additional projects, Ms. Burzacchi told her not to. 128. On June 18, 2019, Ms. Wesley supported a request by Ms. Martinez to temporarily assign Ms. Wesley to Ms. Martinez’s squad. Instead she was temporarily moved to another squad, under Supervisory Intelligence Analyst Alicia DeGroot, where she again was not assigned sufficient work. In addition, the majority of the work that she was assigned was work for a Staff Operations Specialist, a lower level position than Intelligence Analyst.
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129. In June and July 2019, Ms. Welsey’s superiors threatened to take away her reasonable accommodations and did in fact revoke some of her accommodations. When Ms. Wesley submitted a request to telework, Ms. Burzacchi stated that she was unaware of the telework policy and referred the request to Ms. DeGroot. On June 8, 2019, Ms. Wesley was asked to return her laptop. Ms. Wesley submitted a formal request to continue using her laptop as a reasonable accommodation, but Mr. Braun denied her request, citing an “operational priority.” Ms. Wesley returned the laptop, but it was not subsequently assigned to another worker.
130. The day after Ms. Wesley was asked to return her laptop, Ms. Burzacchi and Ms. DeGroot informed her that Mr. Braun and Special Agent in Charge Sean Kaul were considering a policy change limiting the hours within which non-agent employees, including Ms. Wesley, would be permitted to work. Thus, the FBI was threatening to take away Ms. Wesley’s alternative work schedule in addition to her other accommodations.
“B.A.” 131. Plaintiff “B.A.”, a woman, earned a bachelor’s degree in international politics and print journalism in 2014 from Pennsylvania State University, where she had been a student athlete. In 2016, she earned a master’s degree in Middle East Studies from George Washington University’s Elliott School of International Affairs. Prior to joining the FBI she worked as a consultant for Grant Thornton LLP and as a Risk Governance Associate at JP Morgan. 132. In 2018, B.A. attended Basic Training as an Analyst Trainee. During Basic Training, B.A. passed all of her academic tests and job-related requirements. 133. However, B.A received three suitability notations for minor infractions. During her first week of training, B.A. received a suitability notation for parking in the wrong section of the parking lot because the designated lot was full, (for a brief period of time, there were three
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overlapping classes at the Academy – 18-01, 18-02, and 18-03) and she was unsure of where to park. B.A. later learned that multiple other people, including one man in her class, parked in the wrong section of the parking lot but did not receive a suitability notation. B.A. also received a suitability notation from Supervisory Intelligence Analyst Tyrone Jiles for emotional maturity, cooperativeness, and judgment, alleging that she improperly responded to an email from a guest speaker and expressed interest in being assigned to that speaker’s squad, and for “breaking chain-of-command” via email communications requesting leave. When B.A. attempted to address errors in the suitability notation with Ms. Holland, Ms. Holland stated that “perception is reality” and that it “didn’t matter what the details were, just what things appeared to be.” Ms. Holland also told B.A. she was nothing but a “distraction” to the other Trainees. B.A. understood that Ms. Holland was referencing unwanted sexual attention that B.A. received from some of her peers. Ms. Holland could not have been referring to B.A.’s coursework or demeanor in class because B.A. was a model student.
134. Throughout her time at the Academy, B.A. was subjected to pervasive sexual harassment by attendants of the National Academy, as well as some of the New Agent Trainees, Special Agents, and members of management. Specifically, on one occasion, a man participating in National Academy training slipped B.A. his number. Additionally, on two separate occasions, two male Agent Trainees tried to convince her to have sexual intercourse with them in the back of their car. Similarly, on two additional separate occasions, two additional male Agent Trainees tried to convince her to sneak up to the vacant 7th floor to have sex with them. One other male Agent Trainee spent about one week harassing B.A. via text message, sending her up to fifteen messages per day. He eventually stopped after she told him how inappropriate and uncomfortable he made her feel. On yet another occasion, B.A. had to
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have one of her friends escort her back to her room because a different male Agent Trainee was following her throughout the night (including up to her room).
135. These sexual advances were unwanted and made Basic Training miserable for B.A. She was embarrassed to receive so much unwanted attention and disappointed in the lack of professionalism by her peers. These sexual advances added pressure to B.A.’s training, which was already a high-stakes process.
136. The sexual and gender-based commentary directed at B.A. was not only from her peers. Additionally, instructors and counselors would regularly tell B.A. she needed to smile more. B.A. asked dozens of other male trainees at the Academy if they had ever been formally advised they need to smile more and they all responded “no.” Further, Senior Supervisory Intelligence Analyst Brian Moses, who supervised Mr. Jiles publicly asked a group of males from B.A.’s section what they thought of her. When B.A. confronted Mr. Moses about his attempts to elicit gossip about her, he responded by falsely claiming that there was a peer-review process in place where instructors consulted students on their opinions about other students. No such formal peer-review process exists.
137. B.A. reported harassment to her class counselor, Anita Belt. In approximately her second week in Basic Training, B.A. informed Ms. Belt that she was receiving unwanted sexual attention from men during Basic Training and that she thought Mr. Moses was targeting her because she was a woman. B.A.’s counselor acknowledged the discriminatory treatment of women at the Academy and said, “you own a mirror, you know you’re a pretty girl,” that was the way things were, and to just “play the game” if she wanted to succeed. After that, B.A.’s harassment continued and escalated.
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138. One of B.A.’s instructors, Supervisory Special Agent Charles Ro, also engaged in highly inappropriate behavior. During each of his lectures, Mr. Ro would lay out a string of sexist, racist, and generally sophomoric/inappropriate jokes such as a calling the only AfricanAmerican female trainee with braids “spaghetti head,” constantly referring to his “little blue balls” or the size of his genitals, and claiming that female informants were not reliable because they were “too emotional” and all they do is sleep around. Mr. Ro incessantly inquired from B.A.’s male classmates about her personal life in a sexual and derogatory manner. When B.A. politely asked him about this at the Academy, he denied ever discussing her personal life with other trainees; however, in his response to her EEOC complaint, he acknowledged he discussed her personal/sex life with other trainees, but only because they approached him about it first (those trainees firmly denied that, and in fact were the ones who told B.A. about Mr. Ro’s discussions of her in the first place).
139. On July 31, 2018, B.A. was required to appear before a Trainee Review Board. B.A. asked that the Board speak to two instructors who were not present and who B.A. believed would support her. The Board told B.A. they would speak to them, but then never did so. That same day, the Assistant Director of the Training Division discharged B.A. from Basic Training. Although B.A. was discharged from the academy after receiving three suitability notations a male student in her class with at least seven suitability notations graduated without ever being brought before the Trainee Review Board.
“D.A.” 140. D.A., a woman, graduated magna cum laude with a dual Bachelor of Arts Degree in Criminal Justice and Sociology from Mount St. Mary’s University, and later obtained her Master of Arts in Homeland Security from Monmouth University, where she was named Valedictorian. D.A. also earned a Ph.D. from Nova Southeastern University. She began
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working for the FBI as a Staff Operations Specialist in December 2011, where she received two performance-based awards in her first three years.
141. In 2018, D.A. attended Basic Training as an Agent Trainee. During Basic Training, D.A. passed the physical fitness test on numerous occasions (including holding the alltime fastest score on the 300-meter sprint for women), all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations.
142. D.A. was routinely singled out and embarrassed by Tactical Training Unit instructors for her performance during tactical training, despite the fact that D.A.’s performance was the same or similar to that of her classmates who were not verbally criticized. For example, D.A. was told to be more aggressive in her paint gun shooting although she successfully completed the exercise. D.A. was also threatened with a suitability notation for “not running fast enough” during a training exercise, even though she had completed the exercise successfully. Classmates who completed the exercise after D.A. responded and moved more slowly than D.A.; however, they were not threatened with or given a suitability notation.
143. D.A. received a total of three suitability notations, all from the Tactical Training Unit. The first suitability notation was for allegedly dropping her weapon during a training exercise. When D.A. questioned her instructor’s feedback and showed him that she still had her weapon, he told her that she must have picked it back up and that she was too overwhelmed to remember it accurately. D.A. did not feel overwhelmed. The second suitability notation involved a scenario for which approximately half of the class received suitability notations for the same or similar actions as D.A. D.A. received her third suitability notation from a tactical exercise involving a hostage situation. D.A. did not have a clear line to shoot the hostage-taker,
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but her female partner did have a clear shot. Neither of them shot the hostage-taker, so they both received suitability notations.
144. D.A. appeared before a Trainee Review Board on June 27, 2018, and the Assistant Director of the Training Division discharged her on June 28, 2019.
“S.B.” 145. Plaintiff S.B., a woman, graduated Magna Cum Laude from West Virginia University with two Bachelor of Arts degrees in Criminology and Psychology. While attending undergraduate school, S.B. interned with the FBI, interned with the Monongalia County Youth Crisis Shelter, and held a part-time job as a West Virginia University Police Cadet. Upon graduating in 2014, S.B. was hired as a Management and Program Analyst with the FBI. S.B. received two performance-based awards, was nominated for Analyst of the Year, and received a meritorious promotion in her first two years working full time with the FBI. 146. In 2017, S.B. attended Basic Training as an Agent Trainee. S.B. passed the physical fitness test on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations with no retakes. 147. S.B. received three suitability notations, all from the Tactical Training Unit. She received the first suitability notation for her first tactical error made during paint gun scenarios, and the second suitability notation for questioning an instructor’s feedback for clarification purposes. S.B. had no prior tactical experience prior to entering the Academy. When she asked Supervisory Special Agent Herron for clarification on his instructions, Mr. Herron ridiculed S.B. in front of her classmates and accused her of “being argumentative.” After class, Mr. Herron and another instructor, Supervisory Special Agent Mehnert cornered S.B. and cursed at her for “having an attitude problem and being too argumentative.”
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148. On September 18, 2017, shortly after the second incident, S.B. was informed that she was selected to appear before a Trainee Review Board. However, the Trainee Review Board was postponed upon request of her class supervisor, to allow her to demonstrate improvement. S.B. subsequently completed the second round of paint gun scenarios and was complimented by several instructors for her exceptional improvement. S.B. was then informed that the Trainee Review Board was “on hold,” only to be told the next day that the Review Board would take place that morning, September 20, 2017. At the Trainee Review Board, S.B. was presented with a third suitability notation from the Tactical Training Unit. Mr. Mehnert issued her a suitability notation with false descriptions of purported deficiencies in the tactical exercises that had not been raised at the time of the exercises, or any time thereafter until the Trainee Review Board was underway.
149. S.B. was treated differently in the tactical training block because of her gender. Some male Agent Trainees had received three or more suitability notations, but were not brought before the Trainee Review Board. S.B. also witnessed male Agent Trainees questioning instructors’ feedback, sometimes escalating into arguments with the instructors, and the male trainees were neither cursed at, ridiculed, or issued suitability notations. One of her instructors, Mr. Mehnert, leered at S.B. in a sexual manner on numerous occasions throughout her time in the tactical training block. He repeatedly stared at S.B.’s chest, sometimes while licking his lips, and on one occasion he winked at her. S.B. informed Trainee Management Unit Chief Kellie Holland of the sexual harassment, but Ms. Holland dismissed S.B.’s concerns.
150. The Assistant Director of the Training Division discharged S.B. the day of the Tactics Test, for “lack of judgment and emotional maturity.” S.B. was not offered any sort of remedial tactical training, as is the standard with other blocks in the Basic Training curriculum.
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“D.C.” 151. Plaintiff D.C., a woman, earned a Bachelor of Arts in Political Science with a specialized focus in Legal Studies from Virginia Tech University. In 2011, she began working for the FBI as a Financial Operations Specialist in San Antonio, Texas. After three years, D.C. transitioned to an Intelligence Analyst role in the FBI’s International Operations Division and deployed overseas on behalf of the FBI multiple times over a 2.5-year period. While working full-time for the FBI, D.C. earned her Master of Arts in International Relations, Security Policy at St. Mary’s University in San Antonio, Texas. 152. In 2017, D.C. attended Basic Training as an Agent Trainee. During Basic Training, D.C. passed every physical fitness test, all academic tests, the pistol and carbine firearms qualifications, and all other performance tests and evaluations. In addition, D.C. earned a perfect score on the defensive tactics exam (an area in which she had no prior experience before attending Basic Training). 153. D.C. received five suitability notations, all from the Tactical Training Unit. D.C. received the first two suitability notations during her first few weeks of tactical training instruction during the same training scenario. D.C. received one of these suitability notations for “flagging” (pointing her gun at) a teammate during a “J-hook” room entry. D.C. made this mistake having no prior tactical experience. In response, her instructor, Mr. Herron, yelled at her, told her she was “worthless,” and gave her a suitability notation. In contrast, in the final weeks of training, D.C. witnessed a male Agent Trainee make the same mistake. After the male Agent Trainee, who had previous military tactical experience, made the same error, the same instructor patiently coached the male Agent Trainee and offered remedial guidance, saying “the J-hook angle can be tricky, this is how you adjust in this situation.”
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154. D.C. received another suitability notation for three “excessive shots” fired by her male colleague—she was written up for “firing nine shots,” but only six were hers. The instructor refused to count the ammunition remaining in her weapon and the male colleague insisted he had no memory of his actions during the training segment at all. Later, the instructor told D.C. she clearly misremembered the incident due to the stress of the training scenario.
155. On or about January 27, 2018, D.C. learned that she was under Suitability Review. She was required to appear before a Trainee Review Board on or about January 31, 2018. D.C. had trained nightly with her classmates and testified to the board that she was confident she could pass the final Tactical Training test with all the extra work she had been putting in. D.C.’s entire section of over thirty Agent Trainees all signed a letter respectfully requesting the Trainee Review Board allow D.C. to take the test with her fellow Agent Trainees. She was told that there simply was not enough time to train her adequately before graduation.
156. After D.C. appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged D.C. from Basic Training for lack of “Tactical judgment” two weeks before graduation. D.C. had not failed any final exams but she had been told that tactical judgment was considered an “inherent skill.” D.C. was not offered any sort of remedial tactical training, as is the standard with other units in the Basic Training curriculum.
157. Of the seven female Agent Trainees in her section, only three graduated and are now Special Agents. In contrast to D.C.’s experience, a male colleague who had previously failed a physical fitness test and an academic test and who was commonly known by classmates for poor tactics, took and failed the final Tactical Training test. He received remedial training and retook the final Tactical Training test. In his second test, he failed to meet the rubric standards again. The male Agent Trainee was then referred to the Trainee Review Board where
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he was permitted to explain the mistake he made during his retake. After that, his test score was changed to a passing grade and he was ultimately allowed to graduate.
“P.E.” 158. Plaintiff P.E., a woman, earned a Bachelor of Arts Degree in Language, Culture and World Trade from Pace University. Before joining the FBI, P.E. served as a United States Marine. As a Marine, she was trained in multiple weapons systems, and in military tactics and maneuvers. She was deployed twice in Iraq and was recognized for her outstanding performance. In October 2006, P.E. entered duty with the FBI, while still in the Marine Corps Reserves. During her time at the FBI, she held many positions, including serving as a Surveillance Specialist in the Counterintelligence Unit for four years. By 2016, P.E. had completed a total of fourteen years in the United States Marine Corps. She was a 4th award expert rifleman and attained the third level of training in the Marine Corps Martial Arts Program. P.E. continued to serve as a Gunnery Sergeant in the Marine Corps Reserve. 159. In 2016, P.E. attended Basic Training as an Agent Trainee. During Basic Training, P.E. passed the physical fitness test on numerous occasions, all academic tests, pistol and carbine firearms qualifications, and other performance tests and evaluations. 160. P.E. received four suitability notations from the Tactical Training Unit. Her first suitability notation was for a mistake she made during her first exercise. Her second suitability notation was for flagging her partner when entering a room, despite instructors stating during the classroom instruction that flagging partners would be inevitable in certain entry situations. That same day, P.E.’s male partner was not written up for the more egregious error of shooting an unarmed subject. Her partner later told her the instructor had spoken to him and another male classmate and they were both told not to worry because they would not be written up. In another exercise, P.E. received her third suitability notation because her instructor believed that she
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hesitated before shooting and waited until her partner told her to shoot. P.E. disputes this account. That same day, P.E. received her fourth suitability notation for failing to use deadly force in a mock carjacking scenario. The carjacker was already disarmed by the time P.E. had unholstered her weapon, and P.E. believed shooting him would be excessive force.
161. During the training scenarios some of P.E.’s male counterparts had committed similar or worse mistakes than the mistakes P.E. made, but these male counterparts did not receive suitability notations. Further, P.E. was singled out by a male instructor beginning her first day in the tactical training block. Supervisory Special Agent Nguyen, approached P.E. after class and asked her about her military history, which was extensive. After P.E. summarized her military history, Mr. Nguyen walked away without a response. P.E. did not understand why she was singled out by Mr. Nguyen, as there were several other veterans in the class. From that day forward, when P.E. asked questions, Mr. Nguyen verbally berated her. During a review of a scenario, P.E. asked a question and Mr. Nguyen yelled and cursed at her. Thereafter, Mr. Nguyen would talk to the male Agent Trainees but would not address any questions from P.E.
162. On or about October 25, 2016, P.E. was required to appear before a Trainee Review Board. After she appeared before the board, the Assistant Director of the Training Division, discharged her from Basic Training, with just fifteen training days left
“B.G.” 163. Plaintiff B.G., a woman, earned a degree in International Relations from the State University of New York at Albany, where she led her graduating class as the Commencement Day Speaker. She went on to pursue a career within the U.S. Intelligence Community for a decade, before joining the FBI.
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164. In 2018, B.G. attended Basic Training as an Agent Trainee. During Basic Training, B.G. passed her physical fitness test, all academic tests, and firearms test with impressive scores.
165. B.G. received a few suitability notations, all from the Tactical Training Unit. B.G. observed that the Tactical Training Unit instructors treated men and women differently. When a female and male Agent Trainee were partnered together for an exercise, the instructors would pay much closer attention to the woman’s actions in the exercise.
166. On multiple occasions during the Defensive Tactics instruction for B.G., the instructors precluded B.G. from grappling with other students, which was the ordinary way for students to practice. Instead, Defensive Tactics instructors Sirko and Belinda repeatedly singled B.G. out to grapple with them. Very rarely, if ever, were male trainees required to grapple with Defensive Tactics instructors. Mr. Sirko and Mr. Belinda consistently targeted female Trainees in B.G.’s class to grapple with them.
167. Three weeks prior to B.G.’s graduation, the Trainee Management Unit informed her that “she did not meet the standard” in defensive tactics required for graduation because she had failed her grappling test. B.G. failed the grappling portion of her exam because she allegedly had a “lazy escape” meaning that she successfully escaped the scenario, but did not do so forcefully enough. Although B.G. had made a full effort to escape, and was successful, she was judged more harshly due to her weight and stature. Her score was further lowered for allegedly turning her back to her partner, which was not accurate. When B.G. took the retest, she was not paired with another student, as was the usual practice, and instead was paired with an instructor, thereby increasing the difficulty of the test.
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168. The Defensive Tactics instructors never informed B.G. that she was deficient in grappling, nor did they articulate why she continued to be singled out to fight by the instructors. Defensive Tactics instructors did not issue a suitability notation to inform B.G. of her perceived missteps until after her grappling test. Further, she was not given a performance plan for improvement. This practice contrasts greatly with how other units at the Academy operate, including the Firearms Training Unit, which offers comprehensive remediation to ensure trainee success. Firearms instructors inform both the student and his/her supervisor of a possible deficiency and offer timely remedial sessions to improve the trainee’s technique.
169. B.G. was required to leave Quantico the same day she was notified of her discharge. The FBI did not give her time to make arrangements to move her belongings. Because she had relocated from a military assignment overseas to attend Basic Training, she was forced to leave her belongings at Quantico, where they were confiscated by the FBI.
“W.M.” 170. Plaintiff W.M., a woman, earned a Bachelor of Arts in Political Science from North Carolina State University, and a Master of Arts in Political Science from the University of North Carolina-Chapel Hill. Beginning in September 2014, W.M. worked for the FBI as a Special Operations Specialist for four years. 171. In 2018, W.M. attended Basic Training as an Agent Trainee. 172. During Basic Training, W.M. passed the physical fitness test, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations. 173. W.M. received four suitability notations, all from the Tactical Training Unit. W.M. received two of these suitability notations on June 18, 2018, for scenarios in which the majority of Agent Trainees in her section and at least one other section struggled and failed. On
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this day specifically, approximately half of the class received suitability notations for the same scenarios as W.M. When W.M. received these suitability notations, she was notified that she was under Suitability Review. However, several male Agent Trainees in W.M.’s class had more than two suitability notations and were not selected for a Suitability Review. On June 20, 2019, W.M. received a third for an accidental discharge of her weapon in a scenario where she was specifically instructed not to unload her weapon prior to beginning a “dry fire” exercise. Because a dry fire exercise is one in which the participants shoot an unloaded weapon, W.M. faced an impossible choice—disobey a direct order or follow orders and discharge her weapon where she was not supposed to. W.M. received her fourth suitability notation, from a sub-unit of the Tactical Training Unit that handles driving tests, when she did not pass her first driving test. However, when she retook the test, W.M. passed it.
174. While under Suitability Review, W.M. was required to appear before a Trainee Review Board. At the time she was placed under Suitability Review, four male Agent Trainees and two other female Agent Trainees were also selected for review. All male Agent Trainees undergoing suitability review had more suitability notations than W.M. Of the men, one was allowed to return to training without having to appear before the Trainee Review Board. Two others appeared before a Trainee Review Board and were allowed to return to training. Only the fourth male was discharged from Basic Training. The other two female Agent Trainees, like W.M., were discharged from Basic Training.
175. After she appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged W.M. from Basic Training, approximately two hours before she was scheduled to take the final tactics test, which was also the final test remaining in training. She was given no option for remedial training, as is the standard with other units in Basic
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Training. Furthermore, the Trainee Review Board did not recommend W.M. for re-employment with the FBI due to “lack of emotional maturity and evasiveness.” However, prior to attending the Basic Training, W.M. had been highly successful in her previous position, earning near perfect or perfect annual reviews and several performance-based awards. Upon hearing of her dismissal from the Basic Training, W.M.’s previous supervisor and Executive Management quickly took action to have her re-instated because of her previous reputation as a highperforming employee. W.M. has continued to receive a perfect performance rating as a Staff Operations Specialist from her current FBI office, the Charlotte Division, Raleigh Resident Agency.
“C.S.” 176. Plaintiff C.S., a woman, graduated from Baldwin-Wallace College with a Bachelor of Science in Psychology in December 2010. Following graduation, she worked for a mental health agency for approximately four years, then as a Probation Officer for more than two years. 177. In 2017, C.S. attended Basic Training as an Agent Trainee. During Basic Training, C.S. passed the physical fitness test, all academic tests, pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations. 178. C.S. received three suitability notations, all from the Tactical Training Unit. On May 23, 2017, she received her first suitability notation for lack of muzzle discipline on the first day of tactical training exercises in Hogan’s Alley. The particular exercise involved fixing handgun malfunctions in the field. Prior to this day, C.S.’s class had only ever worked on firearm malfunctions on the firing line. During this training, C.S. was not sure of where to go to clear her weapon, and did not understand the supervisor’s instructions. C.S. had never had any prior issues with muzzle control when she was training with the Firearms Training Unit.
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179. The same suitability notation also stated that C.S. acted unprofessionally with a male Agent Trainee during a jovial “Wild West” scenario. Both she and the male Agent Trainee were friends and made lighthearted jokes with each other during the scenario, however, only C.S. received a suitability notation, not the male Agent Trainee. Although C.S. did not want to sign the suitability notation, which she believed was inaccurate, she had been advised to refrain from arguing with or challenging the authority of Tactical Training Unit instructors because they “aren’t like the rest of the academy instructors.”
180. C.S. received her next two suitability notations during her tactical exam on July 11, 2017, both for “judgement issues with deadly force.” C.S. made a mistake due to confusion over the instructor’s failure to end the scenario. Worse, the instructor did not tell her that she had done anything wrong, and thus when the scenario was repeated, and the instructor again failed to end the scenario, C.S. continued as she had before, making the same error.
181. C.S. was initially told (along with others who did not pass) that she would be given a re-test on July 14, 2017. However, C.S. was ultimately denied the opportunity to do so as she was referred to the Trainee Review Board and on July 14, 2017, the Assistant Director of the Training Division discharged her from Basic Training.
182. Meanwhile, a male Agent Trainee in C.S.’s class who also failed the Tactics exam and was referred to the Trainee Review Board was allowed to re-take the tactical training exam and later graduated from the Academy. Further, throughout her tactical training, C.S. had participated in many exercises that involved multiple situations which required discretion and judgement with deadly force, and did not have an issue with deadly force. In contrast, a male Agent Trainee in her class had “issues with deadly force” during a tactical training scenario when he entered a motel room and shot an innocent, unarmed man in the bathroom. He was not
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referred to the Trainee Review Board for this significant error in judgment and was allowed to graduate.
“L.S.” 183. Plaintiff L.S., a woman, attended Basic Training, then called New Agent Training, in 2015 as an Agent Trainee. 184. During Basic Training, L.S. passed the physical fitness test multiple times, all academic tests, the pistol and carbine qualifications, the defensive tactics test, and other performance tests and evaluations. 185. L.S. received three suitability notations, all from the Tactical Training Unit. 186. In the tactical training block, L.S.’s instructors treated her and other female Agent Trainees in an inappropriate sexualized manner. On September 29, 2015, L.S.’s class participated in a Moot Court practical exercise in which an undercover employee played the role of a fourteen year-old girl who was picked up by an adult pedophile that led to the subsequent arrest of the pedophile. L.S. was assigned the undercover employee role for her group. L.S.’s Primary Tactical Instructor, Supervisor Special Agent Gary Galdes, told L.S. that she should wear “short-shorts, pigtails, pink lipstick, and chew bubblegum.” Mr. Galdes’s comments made L.S. extremely uncomfortable. On the day of the exercise, L.S. opted to wear jeans, a long sleeve shirt, and a backpack. While she was changing for the exercise, L.S. noticed another female trainee putting on short-shorts and styling her hair into pigtails. L.S. asked her classmate why she was dressing in that manner, to which her classmate responded, “I’m giving him [Mr. Galdes] what he wants.” When L.S. entered her classroom, Galdes asked her why she was not wearing short-shorts, pigtails, and pink lipstick, and chewing bubblegum. Again, Mr. Galdes’s comment made L.S. feel uncomfortable.
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187. Mr. Galdes made an additional comment to L.S. that made her feel uncomfortable when he told her that she was going to be his “special project.” L.S. felt the comment was singling her out. When L.S. spoke with her counselor about the comment, the counselor suggested that some of the instructors did not like petite attractive women. L.S.’s anxiety increased because she felt Mr. Galdes was scrutinizing her for something over which she had no control. On September 28, 2015, L.S. learned from a classmate that SSA Galdes made a derogatory comment about women when he was chastising a male Agent Trainee about his performance during a tactical exercise. L.S.’s classmate told her Galdes admonished the Agent Trainee by saying “you are no better than a fucking female.” L.S. believes this comment clearly showed Mr. Galdes’s hostility toward women. L.S. reported Mr. Galdes’s comments to class supervisor Supervisory Special Agent Jill Sheets, Class Counselor Steven Spahn, and Special Agent Kieko Wagner. Ms. Sheets interviewed the trainee to whom Mr. Galdes made the comment, and confirmed that Mr. Galdes had in fact made the comment.
188. In September 2015, after L.S. received her third suitability notation in the Tactical Training Unit, L.S. was placed under Suitability Review and required to appear before the Trainee Review Board (then called the New Agent Review Board). The Board recommended L.S. be discharged, and on October 2, 2015 – just two weeks before graduation –the Assistant Director of the Training Division discharged L.S. from Basic Training.
189. While L.S. was at the Academy, she was aware of a male Agent Trainee in her class who failed the Handcuffing One exam—an exam in the Tactical Training block. The male trainee passed when he (and other students who failed) were permitted to retake the exam. The male Agent Trainee later failed the Handcuffing Two exam, which per the policy, should have resulted in an automatic dismissal from Basic Training for failure of two exams. However, on
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October 2, 2015, the male trainee was removed from the classroom during a non-defensive tactics class and permitted to retake Handcuffing Two (without other members of the class present). He was allowed to continue on and graduate with his class, indicating a bias in favor of permitting men multiple opportunities to re-take tests in order to qualify for graduation, despite poor performance, and in violation of documented policy.
190. During a conversation that L.S. had with Supervisory Special Agent Jill Sheets (one of L.S.’s class supervisors), Ms. Sheets stated that “It’s as if they want you to fail” regarding the way L.S. was being treated and singled out in Tactical Training block, indicating a bias within the block and a perception that Tactical Training Unit instructors targeted particular Agent Trainees.
“G.T.” 191. Plaintiff G.T., a woman, graduated from the University of Maryland with a Bachelor of Arts in Political Science. She is licensed to practice law in Virginia, Pennsylvania and New Jersey and litigated for four years. 192. In 2017, G.T. attended Basic Training as an Agent Trainee. During Basic Training, G.T. passed the physical fitness test on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, as well as other performance evaluations. 193. G.T. received three suitability notations, all from the Tactical Training Unit. She was informed she was being referred to the Trainee Review Board after she received her first two suitability notations. For one of her suitability notations, half of G.T.’s class received a suitability notation for the same scenario. G.T. knew of many men in her class who had more than two suitability notations who were not recommended for a Trainee Review Board.
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194. When G.T. was brought before the Trainee Review Board on February 1, 2018, she was presented with a third suitability notation from the Tactical Training Unit. The tactical training test was scheduled for February 2, 2018, the day after G.T.’s Trainee Review Board. Supervisory Special Agent Cortney Merkel, G.T.’s counselor, requested the board allow G.T. to take the test before the board issued a recommendation. However, G.T. was not permitted to take the test. After G.T. appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged G.T. on February 1, 2018, just two weeks before graduation. No offer of remedial training was provided to G.T. She and other female trainees were told by the TRB that there was not enough time before graduation for them to receive remedial training; however, when several male Agent Trainees failed the tactical training exam, they were given the opportunity for additional training and a retest less than two weeks before graduation. V. CAUSES OF ACTION
COUNT ONE Violation of Title VII, 42 U.S.C. § 2000e et seq., (Disparate Treatment – Agent Trainee Subclass) Brought by Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, on behalf of themselves and others
similarly situated.
195. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 65 and 77 through 194.
196. This claim is brought by Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, on behalf of themselves and the Agent Trainee Subclass as defined above.
197. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq., and constitutes a continuing violation of that Act. Defendant has engaged in a pattern or practice of intentional discrimination against its female
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Agent Trainees in issuing Suitability Notations, initiating Suitability Reviews, referring them for Trainee Review Boards, and making discharge, recycling, and reinstatement decisions.
198. The discharge decisions were made by a single decisionmaker, the Assistant Director of the Training Division, and only a small group of decisionmakers were involved in the preliminary steps of issuing Suitability Notations, Suitability Reviews, and Trainee Review Boards.
199. Defendant’s discriminatory practices described above have denied members of the Agent Trainee Subclass the opportunity to graduate from Basic Training and enter Agent positions, and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
200. The conduct described above caused the members of the Agent Trainee Subclass emotional harm and other forms of harm proximately caused by the FBI’s discriminatory conduct.
201. Agent Trainee Plaintiffs request relief as provided in the Prayer for Relief below. COUNT TWO
Violation of Title VII, 42 U.S.C. § 2000e et seq., (Disparate Impact – Agent Trainee Subclass) Brought by Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, on behalf of themselves and others
similarly situated. 202. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 65 and 77 through 194. 203. This claim is brought by Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, on behalf of themselves and the Agent Trainee Subclass as defined above.
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204. The conduct described above violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq., and constitutes a continuing violation of that Act.
205. Defendant has maintained a system for discharge from Basic Training that has had an adverse impact on the Agent Trainee Subclass. Its policies and practices for issuing Suitability Notations and making other decisions culminating in discharge from the New Agent Training program without reinstatement or recycling into the program is excessively subjective. A small group of decisionmakers, similarly trained and working closely together, exercise discretion over issuing Suitability Notations. A smaller group of decisionmakers, Executive Management of the Trainee Management Unit, determines if a Suitability Review will be conducted, conducts such reviews, and determines if a Trainee Review Board will be conducted. A similarly small group participates in the Trainee Review Board and makes a recommendation about discharge. A single decisionmaker, the Assistant Director of the Training Division, decides on discharge.
206. Defendant has failed to create or maintain the data that would allow analysis of the impact of each of these policies and practices separately. It does not maintain records of individuals who engage in behaviors similar to those issued suitability notations, but who are not issued suitability notations. It does not appear that records of suitability notations are maintained in a database, or whether information about those potentially eligible for Suitability Review or Trainee Review Board is similarly tracked in a database. Defendant’s policies and procedures regarding issuing Suitability Notations, determining who will undergo a Suitability Review, and then who will go before the Trainee Review Board are thus not capable of separation for analysis, and accordingly the entire decision-making process for termination decisions may be analyzed as one employment practice. 42 U.S.C. 2000e-2(k)(1)(B)(i).
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207. The FBI’s Suitability Notation through discharge policies challenged herein are not job related or consistent with business necessity. There are less discriminatory alternatives which would address the FBI’s business needs more effectively than its current practices.
208. The FBI’s discriminatory practices described above have denied the Agent Trainee Subclass members the opportunity to graduate from Basic Training and enter Agent positions, and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
209. The Agent Trainee Plaintiffs request relief as provided in the Prayer for Relief below.
COUNT THREE Violation of Title VII, 42 U.S.C. § 2000e et seq., (Disparate Treatment – Analyst Trainee Subclass) Brought by Plaintiffs Spencer Lee and “B.A.” on behalf of themselves and others similarly
situated. 210. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 54, and 66 through 194. 211. This claim is brought by Plaintiffs Spencer Lee and B.A. on behalf of themselves and the Analyst Trainee Subclass as defined above. 212. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq., and constitutes a continuing violation of that Act. Defendant has engaged in a pattern or practice of intentional discrimination against its female Analyst Trainees in issuing Suitability Notations, initiating Suitability Reviews, referring them for Trainee Review Boards, and making discharge, recycling, and reinstatement decisions. 213. The discharge decisions were made by a single decisionmaker, the Assistant Director of the Training Division, and only a small group of decisionmakers were involved in the
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preliminary steps of issuing Suitability Notations, Suitability Reviews, and Trainee Review Boards.
214. Defendant’s discriminatory practices described above have denied members of the Analyst Trainee Subclass the opportunity to graduate from Basic Training and enter Analyst positions, and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
215. The conduct described above caused the members of the Analyst Trainee Subclass emotional harm and other forms of harm proximately caused by the FBI’s discriminatory conduct.
216. Analyst Trainee Plaintiffs request relief as provided in the Prayer for Relief below.
COUNT FOUR Violation of Title VII, 42 U.S.C. § 2000e et seq., (Disparate Impact – Analyst Trainee Subclass) Brought by Plaintiffs Spencer Lee and “B.A.” on behalf of themselves and others similarly
situated. 217. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 55, and 66 through 194. 218. This claim is brought by Plaintiffs Spencer Lee and B.A. on behalf of themselves and the Analyst Trainee Subclass as defined above. 219. The conduct described above violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and constitutes a continuing violation of that Act. 220. Defendant has maintained a system for discharge from Basic Training that has had an adverse impact on the Analyst Trainee Subclass. Its policies and practices for issuing Suitability Notations and making other decisions culminating in discharge from the New Intelligence Analyst Training program without reinstatement or recycling into the program is
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excessively subjective. A small group of decisionmakers, similarly trained and working closely together, exercise discretion over issuing Suitability Notations. A smaller group of decisionmakers, Executive Management of the Trainee Management Unit, determines if a Suitability Review will be conducted, conducts such reviews, and determines if a Trainee Review Board will be conducted. A similarly small group participates in the Trainee Review Board and makes a recommendation about discharge. A single decisionmaker, the Assistant Director of the Training Division, decides on discharge.
221. Defendant has failed to create or maintain the data that would allow analysis of the impact of each of these policies and practices separately. It does not maintain records of individuals who engage in behaviors similar to those issued suitability notations, but who are not issued suitability notations. It does not appear that records of suitability notations are maintained in a database, or whether information about those potentially eligible for Suitability Review or Trainee Review Board is similarly tracked in a database. Defendant’s policies and procedures regarding issuing Suitability Notations, determining who will undergo a Suitability Review, and then who will go before the Trainee Review Board are thus not capable of separation for analysis, and accordingly the entire decision-making process for termination decisions may be analyzed as one employment practice. 42 U.S.C. 2000e-2(k)(1)(B)(i).
222. The FBI’s Suitability Notation through discharge policies challenged herein are not job related or consistent with business necessity. There are less discriminatory alternatives which would address the FBI’s business needs more effectively than its current practices.
223. The FBI’s discriminatory practices described above have denied the Analyst Trainee Subclass members the opportunity to graduate from Basic Training and enter Analyst
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positions, and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
224. The Analyst Trainee Plaintiffs request relief as provided in the Prayer for Relief below.
COUNT FIVE Violation of Title VII, 42 U.S.C. § 2000e et seq.,
(Disparate Treatment) Brought by Plaintiff “B.G.” on behalf of herself. 225. Plaintiff B.G. repeats and realleges the allegations contained in paragraphs 1 through 54, and 77 through 194. 226. This claim is brought by Plaintiff B.G. on behalf of herself. 227. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Defendant discriminated against B.G. in discharging her from Basic Training because of her sex. 228. B.G. was qualified for the Agent Trainee position, performed her duties adequately and met the expectations of her employer, having completed all but one of the required academic and skills tests with impressive scores. During grappling training sessions B.G. did not receive feedback indicating a deficiency in grappling skills. 229. Defendant treated B.G. differently than her male colleagues when it singled her out in grappling training sessions and partnered her with instructors rather than other students in training sessions and her grappling retest. Defendant applied subjective metrics of the grappling tests more harshly to B.G. because of her gender and relied on such tests to discharge her from Basic Training. 230. B.G.’s sex was the determining factor and/or a motivating factor in her discharge from Basic Training.
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231. Defendant’s discriminatory practices described above denied B.G. the opportunity to graduate from Basic Training and enter an Agent position, and compensation and promotions to which she is entitled, which has resulted in the loss of past and future wages and other job benefits.
232. The conduct described above caused B.G. emotional harm and other forms of harm proximately caused by the FBI’s discriminatory conduct.
233. Agent Trainee Plaintiffs request relief as provided in the Prayer for Relief below.
COUNT SIX Violation of Title VII, 42 U.S.C. § 2000e et seq.,
(Hostile Work Environment) Brought by Plaintiffs Erika Wesley and B.A. on behalf of themselves. 234. Plaintiffs Erika Wesley and B.A. repeat and reallege the allegations contained in paragraphs 1 through 54, and 77 through 194. 235. Defendant created hostile environments for Plaintiffs Erika Wesley and B.A. Defendant denied Ms. Wesley and B.A. a non-abusive workplace and the opportunity to work without, fear, intimidation, ridicule, upset, humiliation and unwelcome disturbances. Defendant’s conduct was severe and pervasive, and that conduct altered the terms, conditions and enjoyment of Ms. Wesley’s and B.A.’s employment with Defendant. Reasonable female employees would find the conduct abusive, offensive and humiliating. 236. Supervisors have made and condoned the actions of other employees in making comments to female employees, including Ms. Wesley and B.A., that were unwelcome and based on sex. 237. These comments were sufficiently severe and pervasive as to alter the terms, conditions and privileges of employment, and to create an abusive, intimidating, hostile and offensive working environment for Ms. Wesley and B.A.
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238. This conduct constitutes sexual harassment and discrimination based on sex in violation of § 703 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2.
239. These supervisors were acting within the scope of their employment with defendants when they engaged in harassment of and discrimination against female employees.
240. This harassment and discrimination took place in the workplace during working hours.
241. Defendant had actual and constructive knowledge of harassment of and discrimination against Ms. Wesley and B.A. and failed to take remedial action of any kind whatsoever.
242. Defendant acted in such a manner as to render the FBI’s EEO or anti-harassment policies meaningless as a policy to address and/or combat sexual harassment and abuse in the workplace. Nonetheless, Ms. Wesley and B.A. expressly complained about the harassment. Ms. Wesley informed Trainee Management Unit Chief Kellie Holland in the beginning of March 2018. B.A. informed her class counselor of the harassment in late May or early June 2018.
243. As a proximate result of Defendant’s actions, Ms. Wesley and B.A. suffered humiliation, fear, intimidation, ridicule, upset, economic losses and other emotional injuries and will suffer severe damages and injuries including but not limited to, humiliation, loss of selfesteem, hurt, fear, frustration, emotional distress, inconvenience and damage to their professional reputations.
244. The conduct alleged above, which was permitted to occur by Defendant, was undertaken with malice or with reckless indifference to the federally protected rights of Ms. Wesley and B.A. Defendant is liable to Ms. Wesley and B.A. for violation of § 703 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2.
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COUNT SEVEN Violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.
(Discrimination in Denial of Reasonable Accommodations) Brought by Plaintiffs Spencer Lee and Erika Wesley on behalf of themselves. 245. Plaintiffs Spencer Lee and Erika Wesley repeat and reallege the allegations contained in paragraphs 1 through 54, and 77 through 194. 246. Ms. Lee and Ms. Wesley have disabilities under the meaning of 29 U.S.C. § 705(20) and 42 U.S.C. § 12102(1)(A). Ms. Lee has debilitating migraines which substantially limit major life activities and major bodily functions when they are active. Ms. Wesley’s medical condition substantially limits her major life activities and major bodily functions when it is active. It impairs her ability to sit for long periods of time, causes migraines, severe allergies, and other debilitating symptoms. 247. Prior to attending Basic Training, Ms. Lee and Ms. Wesley gave notice of their disabilities by formally requesting reasonable accommodations. 248. Ms. Lee and Ms. Wesley were qualified for their positions as Analyst Trainees and were able to perform the essential functions of the positions with reasonable accommodations. 249. The FBI denied Ms. Lee and Ms. Wesley reasonable accommodations. Ms. Lee was denied her accommodations when her instructor, Mr. Zwiesler, and her counselor, Ms. Bouey, interfered with her ability to store her medications in a personal refrigerator, carry water to class, and eat small amounts of food outside of mealtimes. Ms. Wesley was denied her accommodations when her instructor, Mr. Zwiesler, interfered with her ability to bring a purse containing medicine to class and when her counselor, Ms. Bouey required her to unplug her personal refrigerator and remove the medical grade air purifier.
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250. Ms. Bouey and Mr. Zwiesler were acting within the scope of their employment when they denied Ms. Lee’s and Ms. Wesley’s accommodations.
251. Defendant’s discriminatory practices described above have caused Ms. Lee and Ms. Wesley harm, including severe emotional distress and physical harm, including adverse health effects from the removal of the accommodations.
252. Accordingly, Defendant violated Ms. Lee’s and Ms. Wesley’s rights protected by Rehabilitation Act of 1973, 29 U.S.C. § 794.
COUNT EIGHT Violation of Title VII, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, § 29
U.S.C. § 794. (Retaliation) Brought by Plaintiff Erika Wesley on behalf of herself. 253. Plaintiff Wesley repeats and realleges the allegations contained in paragraphs 1 through 54, and 77 through 194. 254. Ms. Wesley opposed unlawful employment practices by objecting to sexual advances and sexual and gender-based comments, objecting to the denial of her and Ms. Lee’s reasonable accommodations, and filing internal complaints of harassment and disability discrimination, then EEO charges, and ultimately this lawsuit. Such activities are protected under § 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and the Americans with Disabilities Act, 42 U.S.C. § 12203. Such activities were known to her management at the FBI. 255. Following such actions, Ms. Wesley faced harassing actions such as issuing suitability notations during Basic Training, removing her previously approved accommodations during Basic Training, being denied the opportunity to telework, which she was previously permitted to do, having her assigned position eliminated, and not being assigned work consistent with her Analyst position and grade level. These actions constitute retaliation in violation of
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§ 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3, and the Rehabilitation Act of 1973, § 29 U.S.C. § 794.
256. Supervisors were acting within the scope of their employment when they retaliated against Ms. Wesley.
257. Defendant had actual and constructive knowledge of the retaliation perpetrated against employees and refused to take remedial action of any kind.
258. Defendant’s retaliatory practices described above have caused Ms. Wesley harm, including severe emotional distress and loss of wages.
259. Accordingly, Defendant violated Plaintiff’s rights protected by § 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3, and the Rehabilitation Act of 1973, § 29 U.S.C. § 794.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request the following relief: 1. Certify the proposed class, with a subclass of Agent Trainees, the Agent Trainee Plaintiffs as Agent Trainee Subclass representatives, and Cohen Milstein Sellers & Toll PLLC and David Shaffer as class counsel; 2. Certify the proposed class, with a subclass of Analyst Trainees, the Analyst Trainee Plaintiffs as Analyst Trainee Subclass representatives, and Cohen Milstein Sellers & Toll PLLC and David Shaffer as class counsel; 3. Enter a declaratory judgment that the practices complained of in the First, Second, Third, and Fourth Causes of Action are unlawful and violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.; 4. Enter a permanent injunction prohibiting the FBI, its officers, agents, employees and successors, from engaging in the discriminatory employment practices complained of herein
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in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq., as amended;
5. Enter a permanent mandatory injunction requiring the FBI adopt employment practices in conformity with the requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.;
6. An award of all damages that Plaintiffs, including the Agent Trainee Subclass and Analyst Trainee Subclass, have sustained as a result of the Federal Bureau of Investigation’s conduct, including back pay, front pay, general and special damages for lost compensation and job benefits that they would have received but for the discriminatory practices of the Federal Bureau of Investigation;
7. An award of compensatory damages for emotional distress that Plaintiffs, including the Agent Trainee Subclass and Analyst Trainee Subclass, have sustained;
8. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law;
9. Pre-Judgment and Post-Judgment interest, as provided by law; and 10. Such other and further legal and equitable relief as this Court deems necessary, just and proper. As to Plaintiff B.G.’s individual claims: 11. An award of all damages that Plaintiff B.G. has sustained as a result of the Federal Bureau of Investigation’s conduct, including back pay, front pay, general and special damages for lost compensation and job benefits that she would have received but for the discriminatory practices of the Federal Bureau of Investigation.
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12. An award of compensatory damages and injunctive relief, appropriate to the proof at trial;
13. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law;
14. Pre-Judgment and Post-Judgment interest, as provided by law; and 15. Such other and further legal and equitable relief as this Court deems necessary, just and proper. As to Plaintiff Lee’s individual claims: 16. An award of all damages that Plaintiff Lee has sustained as a result of the Federal Bureau of Investigation’s conduct, including pain and suffering, medical costs, back pay, front pay, general and special damages for lost compensation and job benefits that she would have received but for the discriminatory practices of the Federal Bureau of Investigation. 17. An award of compensatory damages and injunctive relief, appropriate to the proof at trial; 18. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law; 19. Pre-Judgment and Post-Judgment interest, as provided by law; and 20. Such other and further legal and equitable relief as this Court deems necessary, just and proper. As to Plaintiff Wesley’s individual claims: 21. An award of all damages that Plaintiff Wesley has sustained as a result of the Federal Bureau of Investigation’s conduct, including pain and suffering, medical costs, back pay,
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front pay, general and special damages for lost compensation and job benefits that she would have received but for the discriminatory practices of the Federal Bureau of Investigation;
22. An award of compensatory damages and injunctive relief, appropriate to the proof at trial;
23. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law;
24. Pre-Judgment and Post-Judgment interest, as provided by law; and 25. Such other and further legal and equitable relief as this Court deems necessary, just and proper. As to Plaintiff B.A.’s individual claims: 26. An award of all damages that Plaintiff B.A. has sustained as a result of the Federal Bureau of Investigation’s conduct, including back pay, front pay, general and special damages for lost compensation and job benefits that she would have received but for the discriminatory practices of the Federal Bureau of Investigation; 27. An award of compensatory damages and injunctive relief, appropriate to the proof at trial; 28. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law; 29. Pre-Judgment and Post-Judgment interest, as provided by law; and 30. Such other and further legal and equitable relief as this Court deems necessary, just and proper.
JURY TRIAL DEMANDED Plaintiffs demand a jury trial as to all claims so triable.
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September 12, 2019

Respectfully submitted,
/s/Christine E. Webber Joseph M. Sellers (#318410) Christine E. Webber (#439368) Stacy Cammarano, DC Bar #1510736 Cohen Milstein Sellers & Toll PLLC 1100 New York Ave. NW ● Fifth Floor Washington, DC 20005 (202) 408-4600 jsellers@cohenmilstein.com cwebber@cohenmilstein.com scammarano@cohenmilstein.com
David J. Shaffer #413484 5012 Aurora Dr. Kensington, Maryland 20895 Phone: 202-210-7424 E-Mail: davidshaffer511@gmail.com
Attorneys for Plaintiffs

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 Case 1:19-cv-01581 Document 3 Filed 06/06/19 Page 1 of 10

FilED

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUN 06 2019
Clerk, U.S. District & Bankruptcy Courts for the District of Columbia

PAULA BIRD, et al., Plaintiffs,
V.
WILLIAM BARR, Defendant.

Civil Action No. 19-cv-1581 ChiefJudge Beryl A. Howell

MEMORANDUM AND ORDER Ofthe seventeen (or sixteen) plaintiffs in this action, eleven seek to proceed under pseudonyms in the instant suit alleging, individually and on behalf of a class of female New Agent Trainees and Intelligence Analyst Trainees, violations by the Federal Bureau of Investigation ("FBI") of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12111 et seq., and the Rehabilitation Act, 29 U.S.C. § 794. See Pis.' Mot. Proceed Anonymously ("Pis.' Mot.") at 1-2. 1 All plaintiffs, even those who seek to file under their real names, also seek to seal their home addresses. See id. at 1. For the reasons set forth below, the Court will grant the plaintiffs' motion to seal their home addresses, but will deny their request to proceed under pseudonyms.2

Although the unredacted complaint and the list of plaintiffs accompanying this motion list seventeen

plaintiffs, only sixteen plaintiffs are listed in caption and text of the complaint using pseudonyms. In addition,

the language describing the plaintiffs varies between the two versions of the complaint, and the plaintiffs failed

to provide a list of each plaintiffs preferred pseudonym matched with her name, making it difficult, especially

given the sparse information supporting this motion, to determine the identities and circumstances of the

plaintiffs who wish to proceed under pseudonyms.

2

Under Local Civil Rule 40.7(f), the Chief Judge "shall ... hear and determine ... motion[s] to seal the

address of the plaintiff, and motion[s] to file a pseudonymous complaint." LCvR 40.7(f).

1

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I. BACKGROUND

The plaintiffs seek to pursue action against the Department of Justice alleging that,

while attending the FBI's Training Academy in Quantico, Virginia, they were sexually

harassed, subjected to a hostile work environment and outdated gender stereotypes,

terminated, constructively discharged, or otherwise subjected to retaliation in whole or in part

because of their gender or disability. See id. at 2. The plaintiffs allege that because "[m]any

[plaintiffs] still work in other positions in the FBI, other federal and local law enforcement

agencies or are in the Intelligence Community ('IC'), ... their safety [and] privacy would be

harmed by allowing their home addresses to be public." Id. Further "some [plaintiffs] are in

positions where either the disclosure of their names could compromise their law enforcement

positions or expose them to humiliation and reprisal for reporting some of the sexual

harassment" involved in this action. Id.

II. LEGALSTANDARD

Generally, a complaint must state the names of the parties and address of the plaintiff.

FED. R. CIV. P. lO(a) ("The title ofthe complaint must name all the parties."); LCvR 5.l(c)(l)

("The first filing by or on behalf of a party shall have in the caption the name and full

residence address of the party," and "[f]ailure to provide the address information within

30 days offiling may result in the dismissal of the case against the defendant."); LCvR 11.1

'

'

(same requirement as LCvR 5.l(c)(l)). In fact, the Federal Rules "make no provision for

suits by persons using fictitious names or for anonymous plaintiffs," Nat 'I Commodity &

Barter Ass'n, Nat'! Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (lOth Cir. 1989), but

instead promote the public's interest "in knowing the names of [] litigants" because

"disclosing the parties' identities furthers openness ofjudicial proceedings," Doe v. Pub.

2

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Citizen, 749 F.3d 246, 273 (4th Cir. 2014); see also Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992) (per curiam) ("This rule serves more than administrative convenience. It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties."). Thus, the D.C. Circuit has instructed that "parties to a lawsuit must typically openly identify themselves in their pleadings," with "[b]asic fairness dictat[ing] that those among the defendants' accusers who wish to participate ... as individual party plaintiffs must do so under their real names." United States v. Microsoft Corp., 56 F.3d 1448, 1463-64 (D.C. Cir. 1995) (per curiam) (internal quotation marks and citations omitted).
Nevertheless, courts have, in special circumstances, permitted a party "to proceed anonymously" when a court determines "the impact of the plaintiff's anonymity" outweighs "the public interest in open proceedings" and considers the "fairness to the defendant." Nat 'I Ass'n ofWaterfront Emp'rs v. Chao ("Chao"), 587 F. Supp. 2d 90, 99 (D.D.C. 2008) (RMC). When balancing these general factors, two different but analogous tests have been applied in this circuit. The first test consists of the six factors set forth in United States v. Hubbard, 650 F.2d 293, 317-21 (D.C. Cir. 1980):
(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the document prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity ofthat party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purpose for which the documents were introduced. Doe v. CFPB ("Doe f'), No. 15-cv-1177 (RDM), 2015 WL 6317031, at *2 (D.D.C. Oct. 16, 2015). In other cases, a "five-part test to balance the concerns of plaintiffs seeking anonymity with those of defendants and the public interest" has been applied. Eley v. District of Columbia, No. 16-cv-806 (BAH/GMH), 2016 WL 6267951, at *1 (D.D.C. Oct. 25, 2016). These five factors, drawn from James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993), are:
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(1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously. Chao, 587 F. Supp. 2d at 99 (citing Yacovelli v. Moeser, No. 1:02CV596, 2004 WL 1144183, at *6-8 (M.D.N.C. May 20, 2004) (quoting James, 6 F.3d at 238)); Roe v. Doe, No. 18-cv-666 (CKK), 2019 WL 1778053, *2 (D.D.C. Apr. 23, 2019); Doe v. Teti, No. 15-mc-01380 (RWR), 2015 WL 6689862, at *2 (D.D.C. Oct. 19, 2015); Roe v. Bernabei & Wachtel PLLC, 85 F. Supp. 3d 89, 96 (D.D.C. 2015) (TSC); Doe v. US. Dep 't ofState, No. 15-cv-01971 (RWR), 2015 WL 9647660, at *2 (D.D.C. Nov. 3, 2015); Doe v. Cabrera, 307 F.R.D. 1, 5 (D.D.C. 2014) (RBW). The James and Hubbard factors address the same general concerns regarding the "[s]trength of the [g]eneralized [p]roperty and [p]rivacy [i]nterests" involved and "the possibility of prejudice" to those opposing disclosure. Hubbard, 650 F.2d at 320-21. Thus, in exercising discretion ''to grant the rare dispensation ofanonymity ... the court has 'a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted' ... tak[ing] into account the risk of unfairness to the opposing party, as well the customary and constitutionally-embedded presumption of openness in judicial proceedings." Microsoft Corp., 56 F.3d at 1464 (quoting James, 6 F.3d at 238 (other internal citations and quotation marks omitted)). III. DISCUSSION At this stage of the litigation, this Court is not persuaded that the plaintiffs have met their burden of showing that their privacy interests outweigh the public's presumptive and
4

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substantial interest in knowing the details ofjudicial litigation such that pseudonyms are warranted. The plaintiffs' motion does not contain enough detail, particularly with respect to the circumstances of each of the eleven plaintiffs who seek to remain anonymous, to assess the privacy interests at stake. Rather, the sparse information provided assumes that the plaintiffs' need for pseudonyms can be assessed collectively, with no meaningful way of separating and evaluating each individual plaintiffs privacy interests. Whether this is merely an oversight or is in fact an attempt to camouflage variations among each individual's need for a pseudonym is unclear. Further, the motion's failure to provide sufficient detail is compounded by inconsistencies between the two submitted versions of the complaint, which make it difficult if not impossible to ascertain which plaintiffwants to use which pseudonym and why. Any renewed motion, filed under seal and not electronically, as provided in LCvR 5.1(h), must explain, for each plaintiff: (1) her real name; (2) her chosen pseudonym; and (3) a description of the circumstances specific to that plaintiffdemonstrating that the use of a pseudonym is warranted at this stage of litigation. Further, both for ease of resolving any such motion and out of fairness to the defendant, the version ofthe complaint submitted using pseudonyms must match, in all other respects, the version of the complaint submitted using real names. In order to ensure that any renewed motion better accounts for the Chao factors, a summary ofthe current motion's deficiencies on those grounds follows.
As to the first Chao factor, the plaintiffs have not, at this time, demonstrated that anonymity is necessary for each of the eleven plaintiffs seeking to use a pseudonym in order to "preserve privacy in a matter of a sensitive and highly personal nature." Teti, 2015 WL 6689862, at *2. Although the plaintiffs allege that they were subject to gender discrimination and in some instances sexual harassment, Pls.' Mot. at 4, neither their motion nor their
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complaint involves the type of personal, intimate, and in some instances private medical or psychological details that otherwise warrant the use of a pseudonym in cases involving sexual assault. See, e.g., Doe 1 v. George Wash. Univ., 369 F. Supp. 3d 49,63-64 (D.D.C. 2019) (drawing a distinction between allegations of sexual harassment and sexual assault, and agreeing with the proposition that "sexual harassment is not typically considered a matter so highly personal as to warrant proceeding by pseudonym" (internal quotation marks, alteration, and citation omitted)); Doe v. De Amigos, LLC, No. 11-cv-1755 (ABJ), 2012 WL 13047579, at *2 (D.D.C. Apr. 30, 20 12) (permitting the use of a pseudonym for a plaintiff alleging sexual assault out of concern that "graphic material about the assault ... including details of the sexual assault, plaintiffs genital anatomy, hospital examinations ... and consequent psychiatric treatment" would be discussed); Cabrera, 307 F.R.D. at 6 (permitting a pseudonym for pretrial proceedings when the "plaintiffs allegations include graphic details of the alleged [sexual assault], including multiple references to the plaintiffs genitalia and her hospital examination resulting from the alleged assault and battery").
The plaintiffs in this action allege that they endured sexual harassment, including sexual comments and gossip about their sex life and appearance, see, e.g., Campi.~~ 45, 61, 62, 63, 96, yet cases involving similar types of gender discrimination, including ones brought by law enforcement officers, are regularly litigated using the plaintiffs' real names. See, e.g., Pauling v. District ofColumbia, 286 F. Supp. 3d 179, 198 (D.D.C. 20 17) (female employee of the Metropolitan Police Department alleged co-workers gossiped about women they worked with, including by rating them on their looks and breasts); Craig v. District of Columbia, 74 F. Supp. 3d 349, 371 (D.D.C. 2014) (female law enforcement officer alleged that her male co-worker commented on her attractiveness, rubbed her hair, touched her
6

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buttocks, and discussed her sex life); Jones v. District ofColumbia, 879 F. Supp. 2d 69, 7273 (D.D.C. 2012) (female law enforcement officers alleged that they were called derogatory names based on their sex, and were "subjected to direct sexual comments and solicitations from male coworkers"). Should additional, personal details concerning the sexual harassment each plaintiff experienced come to light as litigation continues, a protective order may be a more appropriate manner to address their privacy interests. See Teti, 2015 WL 6689862, at *4 (finding "no injury that a protective order could not remedy in the ordinary course of the litigation should such an order become necessary").
The plaintiffs also speculate that they may experience reputational harm and retaliation at their work, particularly those seven who continue to work at the FBI. See Pis.' Mot. at 4. In addition to those seven, a "majority" ofthe other plaintiffs "also work at other law enforcement agencies or in the Intelligence Community and, due to the nature of their work, need to preserve privacy." !d. For those plaintiffs who work in the Intelligence Community, they fear they "will be over-exposed, creating too much public attention, and thereby[] damaging their chance of promotion or mobility within the field." Id. at 5. The plaintiffs further posit that "in the event that Plaintiffs win this litigation and Plaintiffs decide to return to the FBI as Special Agents, their privacy in future investigations is important." Id. at 4-5. These fears ofreputational harm and loss of economic prospects are, at this stage, too speculative to warrant the use of pseudonyms. See John Doe Co. No. 1 v. CFPB ("Doe If'), 195 F. Supp. 3d 9, 22 (D.D.C. 2016) ("Assertions ... about what 'could' happen, without any elaboration, explanation, or support, are inherently speculative."); Teti, 2015 WL 6689862, at *3 (plaintiffs "bare assertion ... does not offer any way for a court to substantively evaluate the nature and extent of the potential reputational harms that he
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asserts"). Although, particularly for those plaintiffs in the intelligence community, non-speculative arguments supporting the need for privacy may exist, those arguments have not been made adequately here. Without further elaboration, the plaintiffs' privacy interests in preventing economic or reputational harm are not sufficient to outweigh the public's interest in knowing the identities of litigants. See, e.g., Pub. Citizen, 749 F.3d at 274; Doe II, 195 F. Supp. 3d at 22-23; Chao, 587 F. Supp. 2d at 99-100; Qualls v. Rumsfeld, 228 F.R.D. 8, 12 (D.D.C. 2005).
Turning to the second Chao factor, the plaintiffs allege that their identification "poses a risk of retaliatory physical or mental harm," Pls.' Mot. at 5, such as "hazing, being given grunt work, and/or ostracization," id., or "being given a hard time and undeservedly losing respect from their peers which leads to a dangerous working environment in a predominantly male-dominated field," id. In addition, they claim that "making the identities of current and future law enforcement/intelligence community employees public" would "expose[] [them] to a far greater risk of being targeted for threats of violence or retaliation from subjects of investigation, or exploitation by foreign intelligence entities." !d. The "rare dispensation" of allowing parties to proceed pseudonymously generally demands a "critical" case, James, 6 F.3d at 238, and only the last argument, concerning threats of violence or retaliation from subjects of an investigation, comes close to meeting this standard. Although further elaboration on this point (and accurate information) would be needed in order to assess whether use of pseudonyms is warranted, the plaintiffs have established that their home addresses should be redacted from any filings in order to prevent retaliation or exploitation based on their work as law enforcement agents.
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The third Chao factor, concerning the ages of the persons whose privacy interests are sought to be protected, appears to be of limited relevance to this motion because the plaintiffs are not proceeding on behalf of minor children. See Yam an v. US. Dep 't ofState, 786 F. Supp. 2d 148, 153 (D.D.C. 2011).
The fourth and fifth Chao factors ask whether the action is against a governmental or private party and for an analysis of the risk ofunfairness to the opposing party in allowing an action to proceed against it anonymously. The plaintiffs assert that allowing them to proceed under pseudonyms will have no impact on private rights, as the only defendant is a government officer named in his official capacity as head of the Department of Justice. See Pis.' Mot. at 5 Further, in connection with anti-discrimination complaints, the plaintiffs "have already previously disclosed their identifies and addresses" so the defendant ''already has full knowledge" of these facts. Id at 5. Generally, these factors would weigh in favor of allowing the plaintiffs to file under pseudonyms, because anonymity would not compromise the defendant's ability to defend the action. In this case, however, due to discrepancies between the two versions of the complaint and confusion as to which plaintiffs are associated with which pseudonyms, granting the motion in its current form poses some "risk of unfairness to the opposing party." Chao, 587 F. Supp. 2d at 99.
In sum, the plaintiffs have not presented sufficient information to conclude that their privacy interests outweigh the public's substantial and presumptive interest in disclosure. Although this Court has analyzed the motion under the Chao factors, the result would be no different under the Hubbard analysis. As previously noted, the same general balancing inquiry is at issue in both tests: "whether the non-speculative privacy interests that the movants have identified outweigh the public's substantial interest in knowing the identities of
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[the] parties in litigation, along with any legitimate interest that the non-moving parties[] ... may have in revealing the identity of the movants." Doe II, 195 F. Supp. 3d at 17. The plaintiffs who seek to proceed under pseudonyms have failed, at this stage, to meet the "heavy burden" of establishing that each of their privacy interests outweigh the public's interest in knowing each of their identities. See id All plaintiffs have, however, sufficiently established that their addresses should be sealed. IV. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ORDERED that the plaintiffs' Motion to Proceed Anonymously is DENIED; and it is further ORDERED that the plaintiffs' Motion to Seal Their Addresses is GRANTED. SO ORDERED. Date: June 6, 2019
BERYL A. HOWELL Chief Judge
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 Case 1:19-cv-01581-KBJ Document 21 Filed 09/10/19 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

PAULA BIRD, et al., on behalf of

)

themselves and a class of those similarly)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

WILLIAM P. BARR,

)

)

Defendant.

)

)

No. 19-cv-1581 (KBJ)

ORDER

This Court has now reviewed the parties’ filings in connection with Plaintiffs’

motion seeking preliminary injunctive relief, and the cases cited therein. (See Mem. in

Supp. of Pls.’ Mot. for a Prelim. Inj. For Protection from Retaliation, ECF No. 15;

Def.’s Opp’n to Pls.’ Mot., ECF No. 16; Pls.’ Reply in Supp. of Pls.’ Mot. (“Pls.’

Reply”), ECF No 17.) For the reasons cited in the case of Adair v. England, 193 F.

Supp. 2d 196 (D.D.C. 2002) (Urbina, J.), and in light of the allegations of the complaint

in the instant matter, this Court finds that it does not have jurisdiction over the

contentions that plaintiff Erika Wesley makes in her motion seeking preliminary

injunctive relief. See Adair, 193 F. Sipp. 2d at 200 (denying motion seeking a

preliminary injunction for lack of jurisdiction where “the only connections between the

underlying lawsuit and the motion for a preliminary injunction are that both involve the

plaintiffs and the defendants, and that the plaintiffs believe the defendants are

retaliating against them because of the underlying lawsuit”); see also Pls.’ Reply at 11

Case 1:19-cv-01581-KBJ Document 21 Filed 09/10/19 Page 2 of 2
(acknowledging that the complaint does not include the particular retaliatory events at issue in the motion and indicating that Plaintiffs intend to amend the complaint to include these events).1
Accordingly, it is hereby ORDERED that Plaintiffs’ [15] Motion for a Preliminary Injunction for Protection from Retaliation is DENIED WITHOUT PREJUDICE, and the related Motion Hearing currently set for September 12, 2019, is VACATED. It is FURTHER ORDERED that Plaintiffs shall file any motion for leave to amend their complaint or, if they secure Defendant’s consent, any amended complaint, on or before September 20, 2019. See Fed. R. Civ. P. 15(a)(2).

DATE: September 10, 2019

Ketanji Brown Jackson
KETANJI BROWN JACKSON United States District Judge

1 Page numbers cited in this order refer to those that the Court’s electronic filing system automatically assigns.

 
 Case 1:19-cv-01581-KBJ Document 49 Filed 03/16/20 Page 1 of 76

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Paula Bird, Clare Coetzer, Spencer Lee, )

Lauren Rose, Danielle Snider, Erika

)

Wesley, “B.A.”, “D.A.”, “S.B.”, “D.C.”, )

“P.E.”, “B.G.”, “W.M.”, “C.S.”,

)

“L.S.”, “G.T.”, “T.S.”,

)

)

Plaintiffs, on behalf of themselves

)

and a class of those similarly situated

)

)

v.

)

)

William Barr

)

Attorney General of the United States,

)

named in his official Capacity, and

)

head of the Department of Justice,

)

)

Defendant.

)

____________________________________)

No. 1:19-CV-1581 (KBJ) Judge Ketanji B. Jackson

THIRD AMENDED COMPLAINT

Plaintiffs, Paula Bird, Clare Coetzer, Spencer Lee, Lauren Rose, Danielle Snider, Erika

Wesley, “B.A.”, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “B.G.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, and

“T.S.”, individually and on behalf of a class of others similarly situated, allege as follows:

NATURE OF ACTION

1. Plaintiffs are current and former female employees of the Federal Bureau of

Investigation who suffered sex-based discrimination when they were enrolled in the FBI

Academy’s Basic Field Training Course (“Basic Training”), which has had other names at times,

to become Agents and Intelligence Analysts.

2. As New Agent Trainees (“Agent Trainees”) and New Intelligence Analyst

Trainees (“Analyst Trainees”), Plaintiffs experienced discrimination throughout their time in

Case 1:19-cv-01581-KBJ Document 49 Filed 03/16/20 Page 2 of 76
Basic Training, through the FBI’s policy of issuing disciplinary citations, called suitability notations, based on subjective criteria. Female Trainees received suitability notations more frequently and for more minor infractions than male Trainees. Gender stereotypes and a culture of sexism within Basic Training have caused instructors to issue suitability notations in a discriminatory manner. As a result of these suitability notations, the proposed class representatives, Plaintiffs Paula Bird, Clare Coetzer, Spencer Lee, Lauren Rose, Danielle Snider, “B.A.”, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, and “T.S.” were placed under “Suitability Review” and/or sent before disciplinary boards called Trainee Review Boards and discharged from Basic Training by the Assistant Director of the Training Division. Plaintiffs allege that, because of their sex, female Trainees were referred for Suitability Review or to the Trainee Review Board and discharged more frequently and for more minor infractions than similarly situated male Trainees. The proposed class representatives bring claims for disparate treatment and disparate impact in violation of the Title VII of the Civil Rights Act of 1964 on behalf of themselves and more than 80 similarly situated female Agent Trainees and 45 similarly situated female Analyst Trainees.
3. In addition to the discriminatory discharges of the proposed class of Analyst and Agent Trainees, the FBI discriminatorily discharged Plaintiff B.G. based on her sex without first placing her under Suitability Review or referring her to a Trainee Review Board. The FBI also discriminated against two plaintiffs with disabilities, Ms. Lee and Ms. Wesley, when it denied them reasonable accommodations for their disabilities. Further, the FBI subjected Ms. Wesley and B.A. to hostile work environments based on their sex. Ms. Wesley and B.A. were subjected to persistent, graphic, and invasive gender-based and sexual comments. These unwanted comments humiliated Ms. Wesley and B.A. so severely that they altered the conditions of Ms.
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Wesley’s and B.A.’s employment, respectively. The discriminatory behavior was condoned by FBI management and was not corrected when Ms. Wesley and B.A. reported it. Further, when Ms. Wesley reported discrimination, including through internal complaints, formal EEO complaints, and filing this lawsuit, the FBI retaliated against her.
JURISDICTION AND VENUE 4. Jurisdiction is proper in this court in that the district courts have original jurisdiction over Title VII, and Rehabilitation Act claims under 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3), because they arise under the laws of the United States and are brought to recover damages for deprivation of civil rights. 5. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42 U.S.C. § 2000e-5(f)(3), because Defendant’s headquarters is located in this district, the personnel records relevant to this case are in this district, and the personnel practices challenged herein were directed or supervised by Defendant in this district. 6. Plaintiffs have exhausted their administrative remedies prior to bringing this suit in that each plaintiff has filed timely charges of discrimination and filed a class complaint before the Equal Employment Commission on October 23, 2018. More than 180 days have passed since the filing of the class complaint and the EEOC has taken no action on this case since that filing.
PARTIES 7. Defendant William Barr is the Attorney General of the United States, and is sued here in his official capacity as head of the Federal Bureau of Investigation. 8. Plaintiff Paula Bird is a female resident of the state of Florida, and is currently employed by the FBI as an Operational Support Technician. She was discharged from the FBI
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Academy as an Agent Trainee on May 1, 2018, gave first notice of discrimination to the EEOC on May 10, 2018, and filed a timely complaint of discrimination on May 29, 2018. Ms. Bird amended her complaint, filing a class complaint jointly with Plaintiffs Clare Coetzer, Spencer Lee, Lauren Rose, Danielle Snider, Erika Wesley, D.A., D.C., G.T., S.B., and W.M. on October 23, 2018.
9. Plaintiff Clare Coetzer is a female resident of the state of Washington. She was discharged from the FBI Academy as an Agent Trainee on June 29, 2018, gave first notice of discrimination to the EEOC on August 7, 2018, and filed a timely complaint of discrimination on September 17, 2018.
10. Plaintiff Spencer Lee, a woman with a disability, is a resident of the state of Florida. The FBI denied Ms. Lee reasonable accommodations for her disability beginning on or about January 30, 2018, and continuing through the duration of her time in Basic Training, discharged her from the FBI Academy as an Analyst Trainee on March 9, 2018. Ms. Lee gave first notice of discrimination to the EEOC on February 9, 2018 (prior to her dismissal), and filed a timely complaint of discrimination on February 14, 2018.
11. Plaintiff Lauren Rose is a female resident of the state of Florida and is currently employed by the FBI as a Staff Operations Specialist. She was discharged from the FBI Academy as an Agent Trainee on May 20, 2015, gave first notice of discrimination to the EEOC on June 1, 2015, and filed timely charges of discrimination including allegations of a pattern of discrimination against female Agent Trainees on August 3, 2015. Ms. Rose applied for reinstatement on May 25, 2015, on July 27, 2015, and on August 15, 2016, and her requests were denied on October 5, 2018. Ms. Rose filed a timely complaint of discrimination on December 20, 2018.
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12. Plaintiff Danielle Snider is a female resident of Washington, D.C. She was discharged from the FBI Academy as an Agent Trainee on January 31, 2018, gave first notice of discrimination to the EEOC on February 8, 2018, and filed a timely complaint of discrimination on February 10, 2018.
13. Plaintiff Erika Wesley, a woman with a disability, is a resident of the state of Arizona. During her training to become an Intelligence Analyst, the FBI subjected her to a hostile work environment based on her sex beginning in January 2018, denied her reasonable accommodations for her disability, and retaliated against her after she opposed these and other unlawful employment practices. She gave first notice of discrimination to the EEOC on February 8, 2018, while the conduct was still ongoing, and filed a timely complaint of discrimination and retaliation during Basic Training on May 8, 2018. Ms. Wesley gave first notice of retaliation in her current position on June 6, 2019, and filed a timely complaint of retaliation on July 23, 2019.
14. Plaintiff “B.A.” is a female resident of the state of New York. She was discharged from the FBI Academy as an Analyst Trainee on July 31, 2018, gave first notice of discrimination to the EEOC on November 26, 2018, and filed a timely complaint of discrimination on December 13, 2018.
15. Plaintiff “D.A.” is a female resident of the state of Maryland and is currently employed by the FBI as a Staff Operations Specialist. She was discharged from the FBI Academy as an Agent Trainee on June 29, 2018, gave first notice of discrimination to the EEOC on July 2, 2018, and filed a timely complaint of discrimination on September 21, 2018.
16. Plaintiff “S.B.” is a female resident of the state of Maryland and is currently employed by the FBI as an Information Management Specialist. She was discharged from the
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FBI Academy as an Agent Trainee on September 20, 2017, gave first notice of discrimination to the EEOC on February 13, 2018, and filed a timely complaint of discrimination on March 12, 2018.
17. Plaintiff “D.C.” is a female resident of the Commonwealth of Virginia, and is currently employed by the FBI as an Intelligence Analyst. She was discharged from the FBI Academy as an Agent Trainee on February 1, 2018, gave first notice of discrimination to the EEOC on March 2, 2018, and filed a timely complaint of discrimination on April 5, 2018.
18. Plaintiff “P.E.” is a female resident of the state of New York. She was discharged from the FBI Academy as an Agent Trainee on October 25, 2016, gave first notice of discrimination to the EEOC on April 24, 2019, and filed a timely complaint of discrimination on April 24, 2019.
19. Plaintiff “B.G.” is a female resident of the state of New York. She was discharged from the FBI Academy as an Agent Trainee on October 24, 2018, gave first notice of discrimination to the EEOC on October 31, 2018, and filed a timely complaint of discrimination on November 28, 2018.
20. Plaintiff “W.M.” is a female resident of the state of North Carolina, and is currently employed by the FBI as a Staff Operations Specialist. She was discharged from the FBI Academy as an Agent Trainee on June 29, 2018, gave first notice of discrimination to the EEOC on July 17, 2018, and filed a timely complaint of discrimination on August 10, 2018.
21. Plaintiff “C.S.” is a female resident of the state of Arizona. She was discharged from the FBI Academy as an Agent Trainee on July 14, 2017, gave first notice of discrimination to the EEOC on December 3, 2018, and filed a timely complaint of discrimination on February 6, 2019.
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22. Plaintiff “L.S.” is a female resident of the state of California. She was discharged from the FBI Academy as an Agent Trainee on October 2, 2015, and filed timely complaints of discrimination on January 16, 2016, and May 8, 2019.
23. Plaintiff “G.T.” is a female resident of the Commonwealth of Virginia. She was discharged from the FBI Academy as an Agent Trainee on February 1, 2018, gave first notice of discrimination to the EEOC on February 14, 2018, and filed a timely complaint of discrimination on March 15, 2018.
24. Plaintiff “T.S.” is a female resident of the state of Florida. She was discharged from the FBI Academy as an Agent Trainee on May 13, 2016, gave first notice of discrimination to the EEOC on May 16, 2016, and filed a timely complaint of discrimination on July 6, 2016. She received a Final Agency Decision on November 21, 2019, and has sought to join this action as a plaintiff within 71 days of that decision.
FACTUAL BACKGROUND I. DISCRIMINATORY DISCHARGE PRACTICES
25. Plaintiffs allege that the FBI discriminated against them and members of a proposed class of Agent and Analyst Trainees on the basis of sex in issuing suitability notations to female Agent Trainees and Analyst Trainees in the Academy’s under circumstances where similarly situated men did not receive suitability notations, referring them for Suitability Review or to a disciplinary board called the Trainee Review Board (previously called the New Agent Review Board) when similarly situated men were not referred for review, and ultimately discharging them from the Basic Training program, without the opportunity for retraining or retesting, when similarly situated men were permitted to graduate or return for further training. Plaintiffs allege that the FBI engaged in a pattern or practice of discrimination in terminations from Basic Training, and that the FBI’s facially neutral suitability dimensions and process for
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evaluating Agent Trainees and Analyst Trainees, referring them for Suitability Review and to the Trainee Review Board, and terminating them had an adverse impact on women.
26. The FBI’s Training Division administers the Basic Training program for Agent Trainees and Analyst Trainees. The Assistant Director of the Training Division is the decisionmaker for termination decisions involving Agent and Analyst Trainees.
27. Plaintiffs seek to certify a proposed class that challenges gender bias against women in Basic Training in the issuance of suitability notations and subsequent placement in Suitability Review or referral to a Trainee Review Board that results in discriminatory terminations of female Agent and Analyst Trainees. The proposed class members fall into two groups, Agent Trainees and Analyst Trainees, which Plaintiffs seek to certify as subclasses.
A. Agent Trainee Program 28. Agent Trainees begin their training at the FBI Academy with Basic Training, a twenty-week course that contains six to eight weeks of academic courses and twelve to fourteen weeks of training and testing on law enforcement skills. The law enforcement skills portion of Basic Training consists of three “blocks”: Firearms Training, Physical Training/Defensive Tactics (one block), and Tactical Training. During these blocks of training, Agent Trainees receive training from instructors called Supervisory Special Agents. 29. In each of the three law enforcement skills training blocks, currently and at least since 2016, the Agent Trainees are evaluated using a rubric assigned to the particular block. If a Supervisory Special Agent believes that an Agent Trainee has failed to demonstrate sufficient practical skills as required in one of these units, the Supervisory Special Agent may issue a “suitability notation” on the Agent Trainee’s record.
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30. In addition to suitability notations for perceived practical skills deficiencies, Agent Trainees may receive suitability notations for perceived deficiencies in the FBI’s “suitability dimensions,” which are traits the FBI deems necessary for a person to be a suitable Special Agent. The six suitability dimensions are: conscientiousness, cooperativeness, emotional maturity, initiative, integrity, and judgment. Each of these dimensions is defined in the Basic Training Requirements Document with specific examples of suitable and unsuitable behavior. Throughout Basic Training, Counselors (who oversee the Agent Trainees in their living quarters and are functionally part of the Trainee Management Unit) and Supervisory Special Agents evaluate the Agent Trainees using the suitability dimensions in addition to the practical skills rubric for each training unit.
31. The Tactical Training block differs from the other training blocks for several reasons. First, Trainees are simultaneously trained and evaluated in new competencies. In the academic portion of Basic Training, as well as the Firearms Training block and the Physical Training/Defensive Tactics block, a significant amount of training is provided before Agent Trainees are assessed and evaluated. In these other blocks of training, Agent Trainees have a clear transition from training to evaluation, with proficiency being tested on a clearly articulated date.
32. In the Tactical Training block, Agent Trainees receive instruction in Concepts and Tactics for Survival and Care Under Fire before moving on to practical exercises. When the Agent Trainees begin the practical application programs in Tactical Training, they are expected to apply the tactical skills, often for the first time, while simultaneously being evaluated.
33. During the practical applications programs within the Tactical Training block, Agent Trainees are “expected to demonstrate a familiar application of tactical concepts and the
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FBI deadly force policy.” Further, during a practical application program that involves paint gun exercises, the Agent Trainees are required to “execute the basic concepts and tactics for survival and apply appropriate judgment.” During each of the practical applications programs within Tactical Training, Supervisory Special Agents evaluate Agent Trainees using a detailed Tactical Training Rubric.
34. The Tactical Training Rubric that applies to the practical exercises in the Tactical Training Unit evaluates Agent Trainees on critical elements and tactical principles.
35. The tactical principles on which Agent Trainees are evaluated are: (1) intelligence, (2) planning, (3) superiority of personnel and firepower, (4) continually assess the situation and adapt as necessary, (5) cover and concealment, (6) clear communications, (7) control of self, subjects, and environment, and (7) tactical judgment. Each tactical principle is defined with examples of behavior that “fails to meet standards,” “partially meets standards,” and “meets standards.”
36. Except for the “critical elements” described below, the Tactical Training Rubric does not provide guidance on when the deficiency or partial deficiency in a tactical principle should result in a suitability notation. Female Agent Trainees receive suitability notations for tactical principles in Tactical Training more frequently than similarly situated male trainees.
37. In assessing the “critical elements” in Tactical Training, Supervisory Special Agents look for the following deficiencies:
a. “Violates deadly force policy” b. “Accidentally discharges weapon” c. “Failure to apply deadly force, when appropriate and necessary, to avoid loss of life (dereliction of duty)” d. “Lacks muzzle discipline (e.g. points muzzle at teammate or instructor)”
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e. “Improper handling, transporting, or loading of weapon (e.g. rests finger on trigger, unable to resolve malfunction, weapon drawn when interviewing, leaves weapon unsecured” 38. According to the Tactical Training Rubric, a violation of one of the critical elements should automatically result in a suitability notation. In practice, however, not every violation of a critical element results in a suitability notation. Female Agent Trainees receive suitability notations for perceived violations of critical elements more frequently than similarly situated male Agent Trainees who engaged in the same behaviors. 39. Through its simultaneous practical application and evaluation, the Tactical Training block assumes that tactical skills are innate rather than learned skills. Indeed, Supervisory Special Agents who serve as instructors for this block have explicitly articulated their beliefs that the practical exercises test innate attributes that cannot be taught. Due to gender-based stereotypes that assume men have better tactical instincts, female Agent Trainees are judged more harshly than male Agent Trainees in the Tactical Training block of Basic Training. Female Agent Trainees are singled out in group tactical exercises because they are perceived as being weak, prone to failure, or not intuitively understanding law enforcement tactics. By singling out female Agent Trainees, they are put in situations far more frequently that result in suitability notations. Female Agent Trainees receive more unjustified suitability notations than similarly situated male Agent Trainees. 40. Female Agent Trainees are issued suitability notations more frequently for perceived deficiencies in the suitability dimensions than similarly situated male Agent Trainees. Such differences may be driven by gender-based stereotypes that result in behavior being adjudged “command presence” when exhibited by a male Agent Trainee who explains his choice of action that an instructor criticized, but “failure to accept responsibility” or “lack of integrity” when a female Agent Trainee provides a similar explanation.
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41. As will be described in further detail below, suitability notations may result in an Agent Trainee being placed in a Suitability Review, or before a Trainee Review Board, which recommends whether the Agent Trainee should be (1) returned to Basic Training in her original class; (2) “recycled,” or returned to Basic Training in a different class and allowed to retake the courses or tests; or (3) discharged from Basic Training Upon information and belief, female Agent Trainees are referred for Suitability Review or to the Trainee Review Board more frequently than similarly situated male Agent Trainees. Further, female Agent Trainees who are referred for Suitability Review or to appear before the Trainee Review Board are not allowed to retrain or re-enroll in the course (including being recycled into a different class) more frequently than similarly situated male Agent Trainees. Female Agent Trainees who are referred for Suitability Review or to appear before the Trainee Review Board are discharged from Basic Training more frequently than similarly situated male Agent Trainees.
B. Analyst Trainee Program 42. Analyst Trainees begin their training at the FBI Academy with 12 weeks in Basic Training. During the first approximately six to eight weeks, Analyst Trainees and Agent Trainees attend academic courses together. When the Agent Trainees move on to law enforcement skills training units, Analyst Trainees continue with additional academic and intelligence curriculum. 43. Throughout Basic Training, Analyst Trainees are evaluated on job-related skills and suitability. Thus, throughout Basic Training, they may receive suitability notations for perceived deficiencies in the FBI’s suitability dimensions: conscientiousness, cooperativeness, emotional maturity, initiative, integrity, and judgment. These are the same suitability dimensions that apply to the Agent Trainees and each is defined in the Basic Training Requirements
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Document with specific examples of suitable and unsuitable behavior. Throughout Basic Training, Counselors (who oversee the Analyst Trainees in their living quarters) and Supervisory Intelligence Analysts evaluate the Analyst Trainees using the suitability dimensions.
44. Upon information and belief, female Analyst Trainees are issued suitability notations more frequently for perceived deficiencies in the suitability dimensions than similarly situated male Analyst Trainees. Such differences may be driven by gender-based stereotypes that result in behavior being judged negatively when female Analyst Trainees fail to conform to gender norms. For example, when a female Analyst Trainees act assertively, in contravention of gender expectations, and explains her choice of action that an instructor criticized, she is adjudged as failing to accept responsibility or lacking integrity.
45. Suitability notations may result in an Analyst Trainee being placed in a Suitability Review or sent before a Trainee Review Board. Upon information and belief, female Analyst Trainees are referred for Suitability Review or to the Trainee Review Board more frequently than similarly situated male Analyst Trainees; female Analyst Trainees who are referred for discipline are not allowed to retrain or re-enroll in the course (including being recycled into a different class) more frequently than similarly situated male Analyst Trainees; and female Analyst Trainees who are referred for discipline are discharged from Basic Training more frequently than similarly situated male Analyst Trainees.
C. Discipline and Discharge Processes 46. The Training Division is comprised of three sections: Curriculum Management, which is responsible for the Academic block of instruction; the Instruction Section, which is responsible for teaching three non-academic training blocks; and the Training Services Section, which includes the Trainee Management Unit, which handles administrative matters related to
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trainees. The Supervisory Special Agents who serve as instructors in the non-academic blocks work in units within the Instruction Section, with a separate unit for each block of instruction. The Counselors mentioned above, who live with the Trainees in the dorms, participate in classes and training with them, and who, like instructors, may also issue suitability notations, are part of the Trainee Management Unit.
47. The Trainee Management Unit may decide to put Agent Trainees or Analyst Trainees who receive suitability notations through a Suitability Review. The Trainee Management Unit may initiate such a review at the suggestion of one of the instructional units, or Executive Management of the Training Division, or on its own initiative. Agent Trainees and Analyst Trainees who are placed under Suitability Review may be removed from their Basic Training curriculum during the review process.
48. During a Suitability Review, the Trainee Management Unit will provide the Training Division Executive Management with the Trainee’s suitability notations, counseling records, and other undefined sources, as well as a recommendation whether the Trainee should be able to remain in Basic Training. Upon information and belief, the Assistant Director of the Training Division will review these materials and determine whether the Trainee should continue with Basic Training (either remaining in her original class or being recycled into a different class), be discharged, or sent before the Trainee Review Board. Even without a Suitability Review, the Training Division Deputy Assistant Director may refer Agent Trainees and Analyst Trainees to the Trainee Review Board.
49. The Trainee Review Board consists of the following individuals: the Deputy Assistant Director who serves as chair; three Section Chiefs (the Curriculum Management Section Chief, the Instruction Management Section Chief, and the Training Services Section
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Chief), who serve as board members; the Trainee Management Unit Chief, who serves as a board member; one minority representative at the GS-15 level, who serves as a board member; and at times, an Office of General Counsel representative, who serves as legal advisor.
50. The purpose of the Trainee Review Board is to create a factual record and to provide a recommendation to the Assistant Director of the Training Division about whether to permit the trainee to remain in her Basic Training class and graduate with her class, recycle the Trainee to a different class, or to discharge the trainee. The Assistant Director of the Training Division makes the determination whether to discharge the trainee. If the trainee is discharged, then that decision is reviewed by the Assistant Director of the Administrative Services Division.
51. The Deputy Assistant Director determines who may attend and serve as witnesses for the Trainee Review Board. The attendees and witnesses may or may not include the trainee’s classmates, instructors, the Trainee Management Unit Chief, Supervisory Special Agents, Counselor(s), and any other individuals the Deputy Assistant Director deems relevant.
52. The Basic Training Requirements document provides that Agent Trainees and Analyst Trainees may be discharged from Basic Training for failure to meet the proficiency standards (such as those outlined in the Tactical Training Rubric), exhibiting behavior inconsistent with the suitability dimensions, failure to adhere to the Standards of Conduct (a set of ethical standards), and failure to adhere to the FBI Academy Honor Code (a set of ethical standards that relates specifically to the Academy and its training components).
53. Alternatively, Agent Trainees and Analyst Trainees may be “recycled,” that is, returned to Basic Training and allowed to retake the courses or tests. The Basic Training Requirements document describes the circumstances under which an Agent Trainee or Analyst Trainee may be recycled for: medical reasons, excessive absences or absences from mandatory
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training sessions in the physical training, defensive tactics, and firearms blocks; failing the firearms test or re-test; or failing the physical fitness test. The Basic Training Requirements document provides that New Agent Trainees who fail the Tactical Skills Test may re-take the test once, unless their failure was “egregious.”
54. The decisionmakers apply internal biases against women in applying the proficiency standards and suitability dimensions to female Agent Trainees and Analyst Trainees. As result female Agent Trainees and Analyst Trainees are allowed to be recycled into Basic Training less frequently than similarly situated male Agent Trainees and Analyst Trainees. Further, female Agent Trainees and Analyst Trainees are discharged from Basic Training following a Suitability Review or Trainee Review Board more frequently than male Agent Trainees and Analyst Trainees.
55. Trainee Management Unit management and instructors actively seek out derogatory information, or “gossip,” about female trainees from other instructors and counselors in order to levy additional suitability notations against female trainees. However, readily observed violations of the Requirements Document committed by male Trainees are ignored. II. AGENT TRAINEE SUBCLASS ALLEGATIONS
56. Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, and “T.S.” (“Agent Trainee Plaintiffs”) bring this action pursuant to 42 U.S.C. § 2000(e), et seq. and seek certification of a subclass pursuant to Rule 23, Fed. R. Civ. P, comprised of all female Agent Trainees who received suitability notations and were discharged from the FBI Academy’s Basic Training after appearing before a Trainee Review Board or equivalent, or after a Suitability Review (“Agent
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Trainee Subclass”) from April 17, 2015, through the first day of trial in this action. Plaintiffs are members of the subclass they seek to represent.
57. Defendant’s policy, pattern, or practice of discrimination in discharging Agent Trainees based on sex, or Defendant’s practice having a disparate impact based on sex, operated within 45 days of the first complaint of discrimination and unlawfully caused the discharge of one or more named plaintiffs.
58. Agent Trainee Plaintiffs reserve the right to revise the definition of the subclass based upon information learned after the filing of this action.
59. Agent Trainee Plaintiffs bring these claims on behalf of themselves and the Agent Trainee Subclass under Federal Rules of Civil Procedure 23(a), (b)(2) for their requests for declaratory and injunctive relief only, and (b)(3) for their requests for damages. The proposed Agent Trainee Subclass satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those rules.
60. Numerosity: The proposed Agent Trainee Subclass is so numerous that the joinder of all such persons is impracticable, and the disposition of their claims as a subclass will benefit the parties and the Court. Upon information and belief, more than 50 Agent Trainees would qualify as members of the proposed subclass. Membership in the subclass is ascertainable from the FBI’s Basic Training records.
61. Commonality: Plaintiffs and all members of the Agent Trainee Subclass have been subjected to termination using the unlawful practices alleged herein and, therefore, one or more questions of law or fact are common to the Agent Trainee Subclass. These common questions include, but are not limited to, the following:
a. whether the FBI’s common operating practices and procedures in its Basic Field Training Course discriminate against female Agent Trainees;
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b. whether the FBI’s common policies have had an adverse impact on the subclass, and if so, whether such impact can be justified by business necessity;
c. whether the FBI has acted intentionally to discharge female Agent Trainees from the Basic Field Training Course because of their sex;
d. whether the Agent Trainee Subclass may obtain injunctive and other equitable remedies, as well as an award of damages. 62. Typicality: Agent Trainee Plaintiffs and members of the Agent Trainee Subclass were subjected to the same unlawful policies, practices, and procedures and sustained similar losses, injuries, and damages. All subclass members were subjected to the same training practices by the FBI in the Academy’s Basic Field Training Course, as alleged herein, that resulted in their discriminatory discharge from the program. Agent Trainee Plaintiffs’ claims are therefore typical of the claims that could be brought by any member of the Agent Trainee Subclass, and the relief sought is typical of the relief that could be sought by each member of the Agent Trainee Subclass in separate actions. 63. Adequacy of Representation: Agent Trainee Plaintiffs are able to fairly and adequately protect the interests of all members of the Agent Trainee Subclass, as they are challenging the same practices as the class as a whole, and there are no known conflicts of interest between Agent Trainee Plaintiffs and the members of the Agent Trainee Subclass. Plaintiffs have retained counsel who have extensive experience with the prosecution of discrimination claims and complex class-action litigation. 64. This action is properly maintainable as a class action under Rule 23(b)(2), Fed. R. Civ. P., because the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 65. The class action is also properly maintainable pursuant to Rule 23(b)(3) because the questions of law and fact common to members of the class predominate over questions
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affecting only individual members and a class action is superior to other available methods for the fair and efficient resolution of this controversy.
66. Pursuit of this action as a class would provide the most efficient mechanism for adjudicating the claims of Agent Trainee Plaintiffs and the members of the Agent Trainee Subclass. III. ANALYST TRAINEE SUBCLASS ALLEGATIONS
67. Plaintiffs Spencer Lee and B.A. (“Analyst Trainee Plaintiffs”) bring this action pursuant to 42 U.S.C. § 2000(e), et seq. and seek certification of a subclass pursuant to Rule 23, Fed. R. Civ. P, comprised of all female Analyst Trainees who received suitability notations based on suitability dimensions and were discharged from the FBI Academy’s Basic Training after appearing before a Trainee Review Board or equivalent, or after a Suitability Review (“Analyst Trainee Subclass”) from the April 17, 2015, through the first day of trial in this action. Plaintiffs are members of the subclass they seek to represent.
68. Defendant’s policy, pattern, or practice of discrimination in discharging Agent Trainees based on sex, or Defendant’s practice having a disparate impact based on sex, operated within 45 days of the first complaint of discrimination and unlawfully caused the discharge of one or more named plaintiffs.
69. Plaintiffs Spencer Lee and B.A. reserve the right to revise the definition of the subclass based upon information learned after the filing of this action.
70. Plaintiffs Spencer Lee and B.A. bring these claims on behalf of themselves and the Analyst Trainee Subclass under Federal Rules of Civil Procedure 23(a), (b)(2) for their requests for declaratory and injunctive relief only, and (b)(3) for their requests for damages. The
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proposed Analyst Trainee Subclass satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of those rules.
71. Numerosity: The proposed Analyst Trainee Subclass is so numerous that the joinder of all such persons is impracticable, and the disposition of their claims as a subclass will benefit the parties and the Court. Upon information and belief, more than 50 Analyst Trainees would qualify as members of the proposed subclass. Membership in the subclass is ascertainable from the FBI’s employment records.
72. Commonality: Plaintiffs Spencer Lee and B.A. and all members of the Analyst Trainee Subclass have been subjected to termination using the unlawful practices alleged herein and, therefore, one or more questions of law or fact are common to the Analyst Trainee Subclass. These common questions include, but are not limited to, the following:
a. whether the FBI’s common operating practices and procedures in its Basic Field Training Course discriminate against female Analyst Trainees;
b. whether the FBI’s common policies have had an adverse impact on the subclass, and if so, whether such impact can be justified by business necessity;
c. whether the FBI has acted intentionally to discharge female Analyst Trainees from the Basic Field Training Course because of their sex;
d. whether the Analyst Trainee Subclass may obtain injunctive and other equitable remedies, as well as an award of damages. 73. Typicality: Plaintiffs Spencer Lee and B.A. and members of the Analyst Trainee Subclass were subjected to the same unlawful policies, practices, and procedures and sustained similar losses, injuries, and damages. All subclass members were subjected to the same training practices by the FBI in the Academy’s Basic Field Training Course, as alleged herein, that resulted in their discriminatory discharge from the program. Plaintiffs Spencer Lee’s and B.A.’s claims are therefore typical of the claims that could be brought by any member of the Analyst Trainee Subclass, and the relief sought is typical of the relief that could be sought by each member of the Analyst Trainee Subclass in separate actions.
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74. Adequacy of Representation: Plaintiffs Spencer Lee and B.A. are able to fairly and adequately protect the interests of all members of the Analyst Trainee Subclass, as they are challenging the same practices as the subclass as a whole, and there are no known conflicts of interest between Spencer Lee and B.A. and the members of the Analyst Trainee Subclass. Plaintiffs have retained counsel who have extensive experience with the prosecution of discrimination claims and complex class-action litigation.
75. This action is properly maintainable as a class action under Rule 23(b)(2), Fed. R. Civ. P., because the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
76. The class action is also properly maintainable pursuant to Rule 23(b)(3) because the questions of law and fact common to members of the class predominate over questions affecting only individual members and a class action is superior to other available methods for the fair and efficient resolution of this controversy.
77. Pursuit of this action as a class would provide the most efficient mechanism for adjudicating the claims of Plaintiffs Spencer Lee and B.A. and the members of the Analyst Trainee Subclass. IV. NAMED PLAINTIFF ALLEGATIONS
PAULA BIRD 78. Plaintiff Paula Bird, a woman, graduated summa cum laude from the University of Central Florida at the age of nineteen, with a Bachelor of Science in Psychology and a Certificate in Behavioral Forensics. While she was at the University of Central Florida, Ms. Bird interned over the summer with the FBI in Washington, D.C. She subsequently continued her internship with the FBI in the Maitland Resident Agency of the Tampa Division for a year prior
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to attending law school. Ms. Bird graduated in the top 10% of her class from Barry University Dwayne O’Andreas School of Law, after which she practiced law for over six years.
79. In 2018, Ms. Bird attended Basic Training as an Agent Trainee. During Basic Training, Ms. Bird passed the physical fitness test, all academic tests, the pistol and carbine qualifications, the defensive tactics test, and other performance tests and evaluations.
80. Ms. Bird received seven suitability notations, all from the Tactical Training block. Of the seven suitability notations, three were wholly unrelated to tactical performance: she was disciplined for not having the appropriate equipment with her upon arrival at training exercise.
81. The other four suitability notations were for tactical mistakes. For at least three of these tactical mistakes, Ms. Bird received a suitability notation while a male peer who acted in the same manner did not receive a suitability notation. For example, then-Tactical Training Unit Chief Randall Glass issued Ms. Bird a suitability notation for applying appropriate deadly force to a paper target holding a firearm during a training exercise because neither she, nor her male partner, had a flashlight out. Mr. Glass chastised Ms. Bird (but not her male partner) for not using a flashlight before entering the room and stated that “for all [she] knew, the paper target could have been holding a remote control.” At least one male Agent Trainee made the same “mistake” in front of Mr. Glass during the same exercise on the same day and was not issued a suitability notation.
82. After receiving these suitability notations, the Trainee Management Unit initiated a Suitability Review and Ms. Bird was sent before a Trainee Review Board. Of the Agent Trainees in Ms. Bird’s class, only Ms. Bird, another female Agent Trainee, and a male Agent Trainee were sent before the Trainee Review Board. Ms. Bird and the other female Agent Trainee were discharged without being allowed to take the tactics test, while the male Agent
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Trainee was permitted to take the test and graduate. The male Agent Trainee who was permitted to graduate was later told by their class supervisor, Supervisory Special Agent Christopher Neuguth, that he was only sent to the Trainee Review Board because the board was concerned that it would appear that the Academy was targeting women if they did not have at least one male Agent Trainee appear before the Trainee Review Board. The male Agent Trainee was never in danger of being discharged and was only required to appear in front of the Trainee Review Board to create a false appearance of fairness.
83. The Assistant Director of the Training Division discharged Ms. Bird on May 1, 2018, three weeks before graduation. Ms. Bird was not offered any sort of remedial tactical training, as is the standard with other units in the Basic Training curriculum. Additionally, prior to her discharge, Ms. Bird was advised that the Human Resources Department would offer her one support staff position (after reviewing her resume) which she could either accept or reject.
84. Ms. Bird currently works for the FBI as an Operational Support Technician, a lower level position than the Agent position she trained for. Ms. Bird accepted this position to maximize her opportunity to return to Basic Training to become an Agent. Ms. Bird wishes to be reinstated so that she can complete Basic Training under a non-discriminatory evaluation process and become an Agent.
CLARE COETZER 85. Clare Coetzer, a woman, earned a Bachelor of Arts in Psychology, a Master of Arts in Social Work, and obtained a clinical license to practice independently. Ms. Coetzer worked as a social worker for 5 years, during which she successfully helped pilot a new program in Monterey County, CA, where mental health professionals partnered with law enforcement to address mental health crises in the field.
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86. In 2018, Ms. Coetzer attended Basic Training as an Agent Trainee. During Basic Training, Ms. Coetzer passed the physical fitness test on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations.
87. Ms. Coetzer received four suitability notations, all from the Tactical Training Unit for deficiencies noted during tactical training scenarios. Two suitability notations were for scenarios that the majority of the class failed.
88. Ms. Coetzer was treated less favorably than male colleagues who received the same number of suitability notations. During a meeting with the primary tactical instructor, Supervisory Special Agent Paul Herron, and the class counselor, Mr. Herron told a male classmate with four suitability notations that he would “be fine” and “to keep working hard, and not worry about it.” Only minutes after, Mr. Herron told Ms. Coetzer that her four suitability notations were “a lot” and that “people don’t typically graduate with four SNs.” This same male classmate later failed his tactics exam twice; and instead of following protocol for an automatic discharge from Basic Training, he was recommended for a Trainee Review Board in an effort to retain him despite his failures.
89. On June 12, 2018, Ms. Coetzer overheard two male colleagues question their suitability notations to Mr. Herron and their suitability notations were rescinded. No such reconsideration was afforded to female trainees. If anything, questioning their suitability notations resulted in being issued additional suitability notations.
90. On June 18, 2018, Ms. Coetzer was informed by her counselor that she had been placed under Suitability Review for tactical deficiencies. Four of the nine women in Ms. Coetzer’s class were recommended by Tactical Training Unit instructors for a Suitability
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Review, whereas only two of the thirty men in her section were recommended by Tactical Training Unit instructors for a Suitability Review.
91. Although Ms. Coetzer had demonstrated improvement, Ms. Coetzer was sent before the Trainee Review Board, without a chance to take the tactics exam. When Ms. Coetzer asked Mr. Herron for feedback on how she could continue to improve, he responded that there was nothing she could do. He told her she was “not aggressive enough or decisive enough” and remarked, “You can’t teach judgement.”
92. After Ms. Coetzer appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged Ms. Coetzer from Basic Training on June 29, 2018. She was not offered any sort of remedial tactical training, as is the standard with other units in the Basic Training curriculum.
SPENCER LEE 93. Plaintiff Spencer Lee, a woman with a disability, holds a bachelor’s degree in Psychology and Criminal Justice, a master’s degree in Clinical Mental Health Counseling, and is currently studying Biomedical Sciences at the University of South Florida while preparing for enrollment in Medical School. Prior to attending Basic Training, Ms. Lee was employed by the FBI as an Investigative Specialist for the Special Surveillance Group in Kansas City. Ms. Lee experienced sexual harassment while working in the FBI office in Kansas City, and filed an internal complaint. As part of the resolution of that complaint, Ms. Lee entered Basic Training as an Analyst Trainee, in part to get away from the hostile work environment in Kansas City. 94. Ms. Lee has debilitating migraines which substantially limit major life activities and substantially limit major bodily functions when they are active. These migraines can be triggered by certain smells and dehydration, and her symptoms are exacerbated if Ms. Lee is hungry. Prior to attending Basic Training, Ms. Lee followed the protocol for requesting
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reasonable accommodations, including permission to have a personal refrigerator in her dormitory room to store her medications, to carry water with her to class, and to eat small amounts of food outside of designated mealtimes. Although the FBI initially granted such reasonable accommodations, it did not adequately follow through and later denied Ms. Lee her accommodations.
95. In 2018, Ms. Lee attended Basic Training as an Analyst Trainee. During Basic Training, Ms. Lee passed all of her academic tests and job-related requirements.
96. On or about February 7, 2018, Ms. Lee’s counselor, Intelligence Analyst Vanessa Bouey, conducted an inspection of Ms. Lee’s dormitory and disciplined her for having a refrigerator and storing medicine. After the inspection, Ms. Bouey addressed Ms. Lee’s classroom, stating that she had found “contraband” in Ms. Lee’s and Ms. Wesley’s rooms. As will be described below, Ms. Wesley has a disability and had requested reasonable accommodations. When Ms. Bouey stated that she found contraband in their rooms, she was referring to Ms. Lee’s and Ms. Wesley’s medical accommodations. Although Ms. Bouey found prohibited items in other rooms, she named only Ms. Lee and Ms. Wesley in this lecture. In subjecting Ms. Lee to ridicule and discipline for storing her medication in a personal refrigerator, Ms. Bouey effectively denied her reasonable accommodations. Ms. Lee suffered adverse health effects from the denial of these accommodations, which required outside medical intervention and treatment.
97. Ms. Lee received three suitability notations for minor or falsely claimed infractions of the suitability dimensions. First, on January 30, 2018, Ms. Lee received a suitability notation from her field counselor, Special Agent Daniel Zwiesler, for failing to swallow a small bit of food she was chewing prior to entering the classroom. Although
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Defendant had agreed that it would allow Ms. Lee to eat small amounts several times per day and frequently drink water, where eating in the classrooms was otherwise barred, it denied her this accommodation when Mr. Zwiesler disciplined her for eating. When she contested the suitability notation, Mr. Zwiesler accused her of having a lack of candor. Second, February 22, 2018, Ms. Lee received a suitability notation for entering the classroom carrying water in a sealed container, which Mr. Zwiesler and Ms. Lee’s counselor, Intelligence Analyst Vanessa Bouey, arbitrarily determined was not spill-proof and therefore violated the rules. Again, Ms. Lee was denied her reasonable accommodation. On March 1, 2018, Ms. Lee received her third suitability notation for asking for her first duty assignment to be changed to a different location.
98. Ms. Lee received these suitability notations for minor infractions and misunderstandings, while similarly situated male Analyst Trainees did not receive suitability notations for more severe infractions, including the pervasive sexual harassment of Plaintiff B.A.
99. After Ms. Lee’s third suitability notation, Trainee Management Unit Chief Kellie Holland placed Ms. Lee under Suitability Review. On March 8, 2018, Ms. Lee was required to appear before a Trainee Review Board. Ms. Bouey testified before the Trainee Review Board, that Ms. Lee had “contraband” in her room, again referring to Ms. Lee’s reasonable accommodations. The Board recommended Ms. Lee be discharged from Basic Training. On March 9, 2018, the Acting Assistant Director of the Training Division discharged Ms. Lee from Basic Training.
LAUREN ROSE 100. Plaintiff Lauren Rose, a woman, graduated from Liberty University in 2007 with a Bachelor of Science in Psychology and Communications. Ms. Rose entered on duty with the FBI in September 2009, where she worked in professional staff positions for more than five years.
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101. In 2015, Ms. Rose attended Basic Training (then called “New Agent Training”) as an Agent Trainee. During Basic Training, Ms. Rose passed all academic exams, the physical fitness test, pistol and carbine firearms qualifications, and defensive tactics tests without incident.
102. Ms. Rose received three suitability notations, all from the Tactical Training Unit (then called the Practical Applications Unit). Several male trainees made the same, and more egregious, tactical mistakes but were not written up or counseled accordingly.
103. After her third suitability notation, Ms. Rose was placed under Suitability Review and a Trainee Review Board (then called the New Agent Review Board) was convened. On May 19, 2015, Ms. Rose appeared before the Board and on May 20, 2015, the Assistant Director of the Training Division discharged Ms. Rose from Basic Training, just one week prior to graduation. When she asked if she could be recycled, Ms. Rose was informed the Academy did not recycle for tactics. However, within that same fiscal year, another male Agent Trainee had been recycled for issues arising from the tactical portion of the training and was later allowed to graduate.
104. On May 25, 2015, Ms. Rose wrote an email to then-Director James Comey informing him of the prejudicial and discriminatory practices running rampant at the FBI Academy. She requested reinstatement and stated that she was not permitted to meet with the Assistant Director to learn why she was discharged rather than recycled. In his response, Director Comey denied such discrimination was occurring and instead suggested she use her “pain” to reflect on her strengths and weaknesses. On June 5, 2015, Ms. Rose sent letters to then-Assistant Directors Owen Harris (Training Division) and James Turgal (Human Resources Division) notifying them of the unequitable treatment of female trainees at the FBI Academy.
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No response was received. Ms. Rose filed a timely complaint of discrimination on August 3, 2015.
105. On July 27, 2015, Ms. Rose applied for Reinstatement pursuant to FBI Special Agent Reinstatement Policy 0323D 8.8. Included in her request for reinstatement was notification of the uneven distribution of suitability notations. On August 15, 2016, Ms. Rose again requested consideration for reinstatement via FBI Corporate policy by sending a formal letter to then-Assistant Director of Training Division David Resch. Ms. Rose has communicated with the Human Resources Division and Training Division, in writing, about her request for reinstatement several times over the course of more than three years. On October 5, 2018, Ms. Rose was effectively denied her request for reinstatement by Training Division Counsel Amy Armstrong. Ms. Rose subsequently filed a timely complaint of retaliation and discrimination on December 10, 2018.
106. Ms. Rose accepted a lower level position working with the FBI as a Staff Operations Specialist specifically because she wanted to maximize her opportunity to return to the training program and become an Agent. Ms. Rose has repeatedly requested reinstatement and continues to seek reinstatement so that she can complete Basic Training under a nondiscriminatory evaluation process and become an Agent.
DANIELLE SNIDER 107. Plaintiff Danielle Snider, a woman, earned a Bachelor of Science degree in Behavioral Science and Arabic from the United States Air Force Academy. She served on active duty in the United States Air Force for four years, during which she obtained the rank of Captain. After that, Ms. Snider earned a Master of Arts from the University of Kansas in Political Psychology and African Studies. Ms. Snider is currently an Air Force Reserve Captain. Immediately prior to starting at the FBI, she worked at the National Counterterrorism Center
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(NCTC) as an Intelligence Analyst and is a graduate of the Central Intelligence Agency Sherman Kent Career Intelligence Analyst Course and an honor graduate of the U.S. John F. Kennedy School of Special Warfare Psychological Operations Qualification Course.
108. In 2017, Ms. Snider attended Basic Training as an Agent Trainee. During Basic Training, Ms. Snider passed the physical fitness test on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, and other performance tests and evaluations.
109. Ms. Snider received five suitability notations, all from the Tactical Training Unit. Ms. Snider observed male Agent Trainees make some of the same alleged mistakes for which she earned suitability notations, but these men did not receive suitability notations. Ms. Snider had no previous adverse marks on her record during Basic Training, and was told by a Supervisory Special Agent that she was in the top 25 out of her class of 150 students.
110. After Ms. Snider received these suitability notations, the Trainee Management Unit initiated a Suitability Review on January 30, 2018, and on January 31, 2018, the Executive Management of the Training Division convened a Trainee Review Board. After Ms. Snider appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged Ms. Snider two weeks prior to graduation for failure to demonstrate tactical judgement during the tactical skills portion of her training.
111. Of the approximately 30 female Agent Trainees and approximately 120 male Agent Trainees in Ms. Snider’s class, five women and one man appeared before the Trainee Review Board. All five women were discharged. The only Agent Trainee in Ms. Snider’s class who was allowed to graduate after appearing before the Trainee Review Board was a man. Students and instructors who observed the male Agent Trainee’s mistakes described them as “so egregious,” and outside the norm of lawful law enforcement behavior. At least two other male
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Agent Trainees had received the same number or more suitability notations than the female Agent Trainees who were ultimately discharged, but these male Agent Trainees were not brought before the Trainee Review Board and were allowed to graduate from Basic Training.
112. Ms. Snider was not given the opportunity to retrain or be recycled into a different class. Members of the Trainee Review Board told Ms. Snider and the four other female Agent Trainees that there was not enough time to retrain them before graduation. However, when several male New Agent Trainees in her class failed the tactical training final exam, they were given additional training and allowed to retest less than two weeks before graduation. In addition, a male Agent Trainee in Ms. Snider’s class failed the physical fitness test, an academic test, and the Tactical Training test, but was not submitted a to review board and was allowed to graduate.
113. While Ms. Snider is currently employed elsewhere, she would prefer to be reinstated so she could complete Basic Training, under a non-discriminatory evaluation process, and become an Agent.
ERIKA WESLEY 114. Plaintiff Erika Wesley, a woman with a disability, earned a Bachelor of Business Administration from the College of William and Mary. Ms. Wesley earned a Master’s Degree in Criminology from the University of Essex in England at age 21, where she also worked for the Disabled Students Services Department. Ms. Wesley completed one year of Law School at Pepperdine University prior to accepting a position with the FBI. Ms. Wesley worked for the FBI for six years, earning several performance awards and promotions. Ms. Wesley voluntarily separated from the FBI in 2010, just prior to the birth of her first child. Ms. Wesley applied for reinstatement in 2014, and received a conditional offer of employment in 2016.
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115. Ms. Wesley has a medical condition that substantially limits major life activities and major bodily functions when it is active or “flaring up.” It impairs her ability to sit for long periods of time, causes migraines, severe allergies, and other debilitating symptoms. Prior to attending Basic Training, Ms. Wesley followed the protocol for requesting reasonable accommodations, including permission to place a personal refrigerator in her dormitory room and permission to place a medical grade air purifier in her dormitory room. Although the FBI initially granted such reasonable accommodations, it did not adequately follow through and later denied Ms. Wesley her accommodations.
116. In 2018, Ms. Wesley attended Basic Training as an Analyst Trainee. During Basic Training, Ms. Wesley passed all final tests and evaluations. She demonstrated outstanding academic and professional performance, and did not receive any suitability notations for failing to meet objective standards.
117. Meanwhile, however she was subjected to pervasive harassment based on her sex, and retaliation after she reported discrimination that she witnessed on multiple occasions.
118. Ms. Wesley was subjected to a hostile work environment based on her sex. Ms. Wesley’s Counselor repeatedly claimed that Ms. Wesley had become pregnant while engaged in an extramarital affair during her time at the Academy, which was completely untrue. Ms. Wesley was subjected to frequent inappropriate sexually-charged commentary by male instructors and counselors, including frequent comments about women needing to take their birth control to control their moods, inviting female trainees over to a male instructor’s home for special “after hours” attention, and openly disparaging women.
119. Several of Ms. Wesley’s instructors responded with derision when Ms. Wesley or any other female Analyst Trainee asked a question, but usually responded genially when a male
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Analyst Trainee asked a question. Ms. Wesley was frequently subjected to intimidation tactics and threatened with dismissal over minor and even fabricated incidents failing to rise to the level of suitability violations, where male Agent Trainees were granted leniency for serious violations of suitability standards. For example, on one occasion, Supervisory Intelligence Analyst Brian Moses threatened Ms. Wesley with a suitability notation for tying her uniform jacket around her waist, claiming that this was not an approved manner to wear her uniform. Ms. Wesley observed that instructors would often reprimand female Analyst Trainees over behavior that did not violate any job-related proficiencies or suitability dimension and they would use the Trainees’ responses to issue suitability notations. For example, if the female Analyst Trainee did not contest the feedback she was accused of being too deferential, but if she contested the feedback she was accused of being insubordinate.
120. In addition, Ms. Wesley was publicly harassed about her physical limitations and disabilities. On several occasions, Ms. Wesley’s field counselor, Mr. Zweisler, questioned her derisively about the small bag she took to class containing allergy medications, which Ms. Wesley needed to keep on her person in case of a life-threatening allergic reaction. He accused her of violating the rules for bringing it and when Ms. Wesley explained the need for it, he told her to keep the medications down the hall. In subjecting Ms. Wesley to ridicule and threats for carrying her bag of medications to class, Mr. Zwiesler effectively denied her a reasonable accommodation.
121. Ms. Wesley reported discrimination on several occasions. First, on or about January 16, 2018, she informed her counselor, Intelligence Analyst Vanessa Bouey that Mr. Zwiesler had challenged her disability accommodations in an abusive manner that humiliated
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Ms. Wesley. Ms. Wesley also informed Ms. Bouey that she had a medical issue that required her to use the bathroom more frequently than the allotted breaks.
122. Rather than address Ms. Wesley’s complaints, the FBI retaliated against her. After this conversation, Ms. Bouey publicly referenced Ms. Wesley’s accommodations on multiple occasions in a way that Ms. Wesley felt violated her privacy and added unnecessary physical and mental stress to her training. In addition, shortly after Ms. Wesley complained to Ms. Bouey about Mr. Zwiesler, he began ignoring her. He would not make eye contact with her and would avoid interacting with her. Upon information and belief, he was ignoring her because he had learned of her complaint about his discriminatory treatment.
123. On or about February 7, 2018, Ms. Bouey conducted an inspection of Ms. Wesley’s dormitory and required her to unplug her refrigerator and remove her medical grade air purifier—thereby denying her reasonable accommodations. Ms. Wesley suffered adverse health effects from the denial of these accommodations, which required outside medical intervention and treatment. After the inspection, Ms. Bouey addressed Ms. Wesley’s classroom, stating that she had found “contraband” (referring to their medical accommodations) in Ms. Wesley’s and Ms. Lee’s rooms. Although Ms. Bouey found prohibited items in other rooms, she named only Ms. Lee and Ms. Wesley in this lecture. Ms. Wesley’s HIPAA-protected medical information was repeatedly disclosed in classroom settings as a way to mock and intimidate her.
124. The next day, Ms. Wesley reported to Supervisory Intelligence Analyst Brian Moses that Ms. Bouey had removed her accommodations and made inappropriate comments about Ms. Wesley and her accommodations. Ms. Wesley also explained that she thought Ms. Lee was being targeted based on her disability and gender. Mr. Moses told Ms. Wesley he would speak to Ms. Bouey. Shortly after that, however, Ms. Bouey began disciplining Ms.
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Wesley for petty infractions. For example, she supported Mr. Moses when he issued Ms. Wesley a suitability notation for having her phone in the lobby of the class building after-hours, Ms. Bouey had previously given Ms. Wesley permission to use her phone in the building after-hours and other students routinely did so without punishment. Further, Ms. Bouey disparaged Ms. Wesley to her classmates, even telling one student not to trust Ms. Wesley and that Ms. Wesley was “trouble.”
125. In the beginning of March 2018, Ms. Wesley reported misconduct further up the chain of command when she told Trainee Management Unit Chief Kellie Holland that she had witnessed Mr. Zwiesler targeting and harassing Ms. Lee. Ms. Wesley told Ms. Holland that some of the male counselors and instructors were very unprofessional around female Trainees, often treating them worse than male Trainees, and that she thought there was rampant discrimination. In response, Ms. Holland stated that Ms. Wesley had not been on her “radar” prior to that day. Instead of Ms. Holland treating the blatant EEO violations with any seriousness or concern, Ms. Holland threatened Ms. Wesley by stating that her coming forward would not go without consequence.
126. Ms. Holland followed through with her threat of retaliation when she personally issued Ms. Wesley a suitability notation, just days before graduation. Ms. Holland informed Ms. Wesley that she had proactively asked Ms. Wesley’s counselor, supervisor and instructors for derogatory information about Ms. Wesley. Ms. Holland misconstrued a statement Ms. Wesley had made two months prior to cite Ms. Wesley for insubordination and lack of professional judgement. When Ms. Wesley challenged Ms. Holland on the accuracy of the statement, Ms. Holland quipped “Is it more important to be right or to be heard? Hmmm?”
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127. After Ms. Wesley graduated from Basic Training, she was assigned to worked as an Intelligence Analyst in the FBI’s Phoenix Division beginning in April 2018. Due to her disability, Ms. Wesley requested, and received, the following reasonable accommodations that have permitted her to successfully complete her work as an Intelligence Analyst:
a. an ergonomic workstation; b. an alternative work schedule, starting at 6 am; and c. permission to keep an ERAS (secure FBI laptop) at home so that she can
telework when necessary. 128. Ms. Wesley further engaged in protected activity when she filed her EEO charge of discrimination on May 18, 2018, and when she filed this lawsuit on May 29, 2019. Although the Complaint was filed under seal pending resolution of the request by some plaintiffs to proceed anonymously, a copy of the Complaint, in which Erika Wesley is named, was sent via email to counsel for the FBI who had been handling the internal EEO complaints. Further, Ms. Wesley appeared and was named in media coverage about the case on May 29, 2019. 129. In the two days following Ms. Wesley’s filing of this case, one of her superiors, Acting Assistant Special Agent in Charge Andrew Braun, made explicit threats to terminate her because of her participation in this lawsuit. On May 29, 2019, Mr. Braun spoke to Ms. Wesley’s supervisor, Supervisory Intelligence Analyst Mary Martinez about potential changes to Ms. Martinez’s position. Understanding that a re-organization might be underway, Ms. Martinez expressed a desire to have Ms. Wesley on whatever squad she was supervising. In response, Mr. Braun stated:
That is not happening. That is not what I mean. She is a probationary employee and she spends all her time doing her EEO complaints and is busy suing the bureau instead of doing her job. She needs to go.
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130. On May 31, 2019, Mr. Braun asked Acting Supervisory Intelligence Analyst Megan Eckstein, what she thought of someone new who “spent all their time researching EEO policies and filing lawsuits.”
131. In the next few weeks, Ms. Wesley was subjected to several adverse employment actions. On June 4, 2019, Mr. Braun called a meeting of intelligence analysts in the Phoenix Division and announced that Ms. Wesley would be assigned to work on another squad. Two days later, on June 6, 2019, A/ASAC Braun sent out an email which documented additional changes to the intelligence program. In that document, Ms. Wesley’s specific position, one that no other employees in that Division hold, was described as being “eradicated.” Ms. Wesley was transferred to work under Supervisory Intelligence Analyst Kelly Burzacchi on June 9, 2019, but was not assigned enough work in her new position to keep her occupied. When she volunteered to work on additional projects, Ms. Burzacchi told her not to.
132. On June 18, 2019, Ms. Wesley supported a request by Ms. Martinez to temporarily assign Ms. Wesley to Ms. Martinez’s squad. Instead she was temporarily moved to another squad, under Supervisory Intelligence Analyst Alicia DeGroot, where she again was not assigned sufficient work. In addition, the majority of the work that she was assigned was work for a Staff Operations Specialist, a lower level position than Intelligence Analyst.
133. In June and July 2019, Ms. Welsey’s superiors threatened to take away her reasonable accommodations and did in fact revoke some of her accommodations. When Ms. Wesley submitted a request to telework, Ms. Burzacchi stated that she was unaware of the telework policy and referred the request to Ms. DeGroot. On June 8, 2019, Ms. Wesley was asked to return her laptop. Ms. Wesley submitted a formal request to continue using her laptop as a reasonable accommodation, but Mr. Braun denied her request, citing an “operational
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priority.” Ms. Wesley returned the laptop, but it was not subsequently assigned to another worker.
134. The day after Ms. Wesley was asked to return her laptop, Ms. Burzacchi and Ms. DeGroot informed her that Mr. Braun and Special Agent in Charge Sean Kaul were considering a policy change limiting the hours within which non-agent employees, including Ms. Wesley, would be permitted to work. Thus, the FBI was threatening to take away Ms. Wesley’s alternative work schedule in addition to her other accommodations.
“B.A.” 135. Plaintiff B.A., a woman, earned a bachelor’s degree in international politics and print journalism in 2014 from Pennsylvania State University, where she had been a student athlete. In 2016, she earned a master’s degree in Middle East Studies from George Washington University’s Elliott School of International Affairs. Prior to joining the FBI she worked as a consultant for Grant Thornton LLP and as a Risk Governance Associate at JP Morgan. 136. In 2018, B.A. attended Basic Training as an Analyst Trainee. During Basic Training, B.A. passed all of her academic tests and job-related requirements. 137. However, B.A received three suitability notations for minor infractions. During her first week of training, B.A. received a suitability notation for parking in the wrong section of the parking lot because the designated lot was full, (for a brief period of time, there were three overlapping classes at the Academy – 18-01, 18-02, and 18-03) and she was unsure of where to park. B.A. later learned that multiple other people, including one man in her class, parked in the wrong section of the parking lot but did not receive a suitability notation. B.A. also received a suitability notation from Supervisory Intelligence Analyst Tyrone Jiles for emotional maturity, cooperativeness, and judgment, alleging that she improperly responded to an email from a guest speaker and expressed interest in being assigned to that speaker’s squad, and for “breaking
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chain-of-command” via email communications requesting leave. When B.A. attempted to address errors in the suitability notation with Ms. Holland, Ms. Holland stated that “perception is reality” and that it “didn’t matter what the details were, just what things appeared to be.” Ms. Holland also told B.A. she was nothing but a “distraction” to the other Trainees. B.A. understood that Ms. Holland was referencing unwanted sexual attention that B.A. received from some of her peers. Ms. Holland could not have been referring to B.A.’s coursework or demeanor in class because B.A. was a model student.
138. Throughout her time at the Academy, B.A. was subjected to pervasive sexual harassment by attendants of the National Academy, as well as some of the New Agent Trainees, Special Agents, and members of management. Specifically, on one occasion, a man participating in National Academy training slipped B.A. his number. Additionally, on two separate occasions, two male Agent Trainees tried to convince her to have sexual intercourse with them in the back of their car. Similarly, on two additional separate occasions, two additional male Agent Trainees tried to convince her to sneak up to the vacant 7th floor to have sex with them. One other male Agent Trainee spent about one week harassing B.A. via text message, sending her up to fifteen messages per day. He eventually stopped after she told him how inappropriate and uncomfortable he made her feel. On yet another occasion, B.A. had to have one of her friends escort her back to her room because a different male Agent Trainee was following her throughout the night (including up to her room).
139. These sexual advances were unwanted and made Basic Training miserable for B.A. She was embarrassed to receive so much unwanted attention and disappointed in the lack of professionalism by her peers. These sexual advances added pressure to B.A.’s training, which was already a high-stakes process.
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140. The sexual and gender-based commentary directed at B.A. was not only from her peers. Additionally, instructors and counselors would regularly tell B.A. she needed to smile more. B.A. asked dozens of other male trainees at the Academy if they had ever been formally advised they need to smile more and they all responded “no.” Further, Senior Supervisory Intelligence Analyst Brian Moses, who supervised Mr. Jiles publicly asked a group of males from B.A.’s section what they thought of her. When B.A. confronted Mr. Moses about his attempts to elicit gossip about her, he responded by falsely claiming that there was a peer-review process in place where instructors consulted students on their opinions about other students. No such formal peer-review process exists.
141. B.A. reported harassment to her class counselor, Anita Belt. In approximately her second week in Basic Training, B.A. informed Ms. Belt that she was receiving unwanted sexual attention from men during Basic Training and that she thought Mr. Moses was targeting her because she was a woman. B.A.’s counselor acknowledged the discriminatory treatment of women at the Academy and said, “you own a mirror, you know you’re a pretty girl,” that was the way things were, and to just “play the game” if she wanted to succeed. After that, B.A.’s harassment continued and escalated.
142. One of B.A.’s instructors, Supervisory Special Agent Charles Ro, also engaged in highly inappropriate behavior. During each of his lectures, Mr. Ro would lay out a string of sexist, racist, and generally sophomoric/inappropriate jokes such as a calling the only AfricanAmerican female trainee with braids “spaghetti head,” constantly referring to his “little blue balls” or the size of his genitals, and claiming that female informants were not reliable because they were “too emotional” and all they do is sleep around. Mr. Ro incessantly inquired from B.A.’s male classmates about her personal life in a sexual and derogatory manner. When B.A.
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politely asked him about this at the Academy, he denied ever discussing her personal life with other trainees; however, in his response to her EEOC complaint, he acknowledged he discussed her personal/sex life with other trainees, but only because they approached him about it first (those trainees firmly denied that, and in fact were the ones who told B.A. about Mr. Ro’s discussions of her in the first place).
143. On July 31, 2018, B.A. was required to appear before a Trainee Review Board. B.A. asked that the Board speak to two instructors who were not present and who B.A. believed would support her. The Board told B.A. they would speak to them, but then never did so. That same day, the Assistant Director of the Training Division discharged B.A. from Basic Training. Although B.A. was discharged from the academy after receiving three suitability notations a male student in her class with at least seven suitability notations graduated without ever being brought before the Trainee Review Board.
“D.A.” 144. D.A., a woman, graduated magna cum laude with a dual Bachelor of Arts Degree in Criminal Justice and Sociology from Mount St. Mary’s University, and later obtained her Master of Arts in Homeland Security from Monmouth University, where she was named Valedictorian. D.A. also earned a Ph.D. from Nova Southeastern University. She began working for the FBI as a Staff Operations Specialist in December 2011, where she received two performance-based awards in her first three years. 145. In 2018, D.A. attended Basic Training as an Agent Trainee. During Basic Training, D.A. passed the physical fitness test on numerous occasions (including holding the alltime fastest score on the 300-meter sprint for women), all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations.
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146. D.A. was routinely singled out and embarrassed by Tactical Training Unit instructors for her performance during tactical training, despite the fact that D.A.’s performance was the same or similar to that of her classmates who were not verbally criticized. For example, D.A. was told to be more aggressive in her paint gun shooting although she successfully completed the exercise. D.A. was also threatened with a suitability notation for “not running fast enough” during a training exercise, even though she had completed the exercise successfully. Classmates who completed the exercise after D.A. responded and moved more slowly than D.A.; however, they were not threatened with or given a suitability notation.
147. D.A. received a total of three suitability notations, all from the Tactical Training Unit. The first suitability notation was for allegedly dropping her weapon during a training exercise. When D.A. questioned her instructor’s feedback and showed him that she still had her weapon, he told her that she must have picked it back up and that she was too overwhelmed to remember it accurately. D.A. did not feel overwhelmed. The second suitability notation involved a scenario for which approximately half of the class received suitability notations for the same or similar actions as D.A. D.A. received her third suitability notation from a tactical exercise involving a hostage situation. D.A. did not have a clear line to shoot the hostage-taker, but her female partner did have a clear shot. Neither of them shot the hostage-taker, so they both received suitability notations.
148. D.A. appeared before a Trainee Review Board on June 27, 2018, and the Assistant Director of the Training Division discharged her on June 28, 2019.
149. D.A. accepted a lower level position working with the FBI as a Staff Operations Specialist because she wanted to maximize her opportunity to return to the training program and
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become an Agent. D.A. wishes to be reinstated so she can complete Basic Training under a non-discriminatory evaluation process and become an Agent.
“S.B.” 150. Plaintiff S.B., a woman, graduated Magna Cum Laude from West Virginia University with two Bachelor of Arts degrees in Criminology and Psychology. While attending undergraduate school, S.B. interned with the FBI, interned with the Monongalia County Youth Crisis Shelter, and held a part-time job as a West Virginia University Police Cadet. Upon graduating in 2014, S.B. was hired as a Management and Program Analyst with the FBI. S.B. received two performance-based awards, was nominated for Analyst of the Year, and received a meritorious promotion in her first two years working full time with the FBI. 151. In 2017, S.B. attended Basic Training as an Agent Trainee. S.B. passed the physical fitness test on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations with no retakes. 152. S.B. received three suitability notations, all from the Tactical Training Unit. She received the first suitability notation for her first tactical error made during paint gun scenarios, and the second suitability notation for questioning an instructor’s feedback for clarification purposes. S.B. had no prior tactical experience prior to entering the Academy. When she asked Supervisory Special Agent Herron for clarification on his instructions, Mr. Herron ridiculed S.B. in front of her classmates and accused her of “being argumentative.” After class, Mr. Herron and another instructor, Supervisory Special Agent Mehnert cornered S.B. and cursed at her for “having an attitude problem and being too argumentative.” 153. On September 18, 2017, shortly after the second incident, S.B. was informed that she was selected to appear before a Trainee Review Board. However, the Trainee Review Board
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was postponed upon request of her class supervisor, to allow her to demonstrate improvement. S.B. subsequently completed the second round of paint gun scenarios and was complimented by several instructors for her exceptional improvement. S.B. was then informed that the Trainee Review Board was “on hold,” only to be told the next day that the Review Board would take place that morning, September 20, 2017. At the Trainee Review Board, S.B. was presented with a third suitability notation from the Tactical Training Unit. Mr. Mehnert issued her a suitability notation with false descriptions of purported deficiencies in the tactical exercises that had not been raised at the time of the exercises, or any time thereafter until the Trainee Review Board was underway.
154. S.B. was treated differently in the tactical training block because of her gender. Some male Agent Trainees had received three or more suitability notations, but were not brought before the Trainee Review Board. S.B. also witnessed male Agent Trainees questioning instructors’ feedback, sometimes escalating into arguments with the instructors, and the male trainees were neither cursed at, ridiculed, or issued suitability notations. One of her instructors, Mr. Mehnert, leered at S.B. in a sexual manner on numerous occasions throughout her time in the tactical training block. He repeatedly stared at S.B.’s chest, sometimes while licking his lips, and on one occasion he winked at her. S.B. informed Trainee Management Unit Chief Kellie Holland of the sexual harassment, but Ms. Holland dismissed S.B.’s concerns.
155. The Assistant Director of the Training Division discharged S.B. the day of the Tactics Test, for “lack of judgment and emotional maturity.” S.B. was not offered any sort of remedial tactical training, as is the standard with other blocks in the Basic Training curriculum.
156. After she was discharged from Basic Training, S.B. accepted a lower level position working with the FBI as an Information Management Specialist because she wanted to
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maximize her opportunity to return to the training program and become an Agent. S.B. wishes to be reinstated so that she can complete Basic Training under a non-discriminatory evaluation process and become an Agent.
“D.C.” 157. Plaintiff D.C., a woman, earned a Bachelor of Arts in Political Science with a specialized focus in Legal Studies from Virginia Tech University. In 2011, she began working for the FBI as a Financial Operations Specialist in San Antonio, Texas. After three years, D.C. transitioned to an Intelligence Analyst role in the FBI’s International Operations Division and deployed overseas on behalf of the FBI multiple times over a 2.5-year period. While working full-time for the FBI, D.C. earned her Master of Arts in International Relations, Security Policy at St. Mary’s University in San Antonio, Texas. 158. In 2017, D.C. attended Basic Training as an Agent Trainee. During Basic Training, D.C. passed every physical fitness test, all academic tests, the pistol and carbine firearms qualifications, and all other performance tests and evaluations. In addition, D.C. earned a perfect score on the defensive tactics exam (an area in which she had no prior experience before attending Basic Training). 159. D.C. received five suitability notations, all from the Tactical Training Unit. D.C. received the first two suitability notations during her first few weeks of tactical training instruction during the same training scenario. D.C. received one of these suitability notations for “flagging” (pointing her gun at) a teammate during a “J-hook” room entry. D.C. made this mistake having no prior tactical experience. In response, her instructor, Mr. Herron, yelled at her, told her she was “worthless,” and gave her a suitability notation. In contrast, in the final weeks of training, D.C. witnessed a male Agent Trainee make the same mistake. After the male Agent Trainee, who had previous military tactical experience, made the same error, the same
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instructor patiently coached the male Agent Trainee and offered remedial guidance, saying “the J-hook angle can be tricky, this is how you adjust in this situation.”
160. D.C. received another suitability notation for three “excessive shots” fired by her male colleague—she was written up for “firing nine shots,” but only six were hers. The instructor refused to count the ammunition remaining in her weapon and the male colleague insisted he had no memory of his actions during the training segment at all. Later, the instructor told D.C. she clearly misremembered the incident due to the stress of the training scenario.
161. On or about January 27, 2018, D.C. learned that she was under Suitability Review. She was required to appear before a Trainee Review Board on or about January 31, 2018. D.C. had trained nightly with her classmates and testified to the board that she was confident she could pass the final Tactical Training test with all the extra work she had been putting in. D.C.’s entire section of over thirty Agent Trainees all signed a letter respectfully requesting the Trainee Review Board allow D.C. to take the test with her fellow Agent Trainees. She was told that there simply was not enough time to train her adequately before graduation.
162. After D.C. appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged D.C. from Basic Training for lack of “tactical judgment” two weeks before graduation. D.C. had not failed any final exams but she had been told that tactical judgment was considered an “inherent skill.” D.C. was not offered any sort of remedial tactical training, as is the standard with other units in the Basic Training curriculum.
163. Of the seven female Agent Trainees in her section, only three graduated and are now Special Agents. In contrast to D.C.’s experience, a male colleague who had previously failed a physical fitness test and an academic test and who was commonly known by classmates for poor tactics, took and failed the final Tactical Training test. He received remedial training
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and retook the final Tactical Training test. In his second test, he failed to meet the rubric standards again. The male Agent Trainee was then referred to the Trainee Review Board where he was permitted to explain the mistake he made during his retake. After that, his test score was changed to a passing grade and he was ultimately allowed to graduate.
164. After she was discharged from Basic Training, D.C. accepted a position as an Intelligence Analyst, a lower-level position that she had occupied before she entered Basic Training to become an Agent. D.C. wishes to be reinstated so she can complete Basic Training under a non-discriminatory evaluation process and become an Agent.
“P.E.” 165. Plaintiff P.E., a woman, earned a Bachelor of Arts Degree in Language, Culture and World Trade from Pace University. Before joining the FBI, P.E. served as a United States Marine. As a Marine, she was trained in multiple weapons systems, and in military tactics and maneuvers. She was deployed twice in Iraq and was recognized for her outstanding performance. In October 2006, P.E. entered duty with the FBI, while still in the Marine Corps Reserves. During her time at the FBI, she held many positions, including serving as a Surveillance Specialist in the Counterintelligence Unit for four years. By 2016, P.E. had completed a total of fourteen years in the United States Marine Corps. She was a 4th award expert rifleman and attained the third level of training in the Marine Corps Martial Arts Program. P.E. continued to serve as a Gunnery Sergeant in the Marine Corps Reserve. 166. In 2016, P.E. attended Basic Training as an Agent Trainee. During Basic Training, P.E. passed the physical fitness test on numerous occasions, all academic tests, pistol and carbine firearms qualifications, and other performance tests and evaluations. 167. P.E. received four suitability notations from the Tactical Training Unit. Her first suitability notation was for a mistake she made during her first exercise. Her second suitability
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notation was for flagging her partner when entering a room, despite instructors stating during the classroom instruction that flagging partners would be inevitable in certain entry situations. That same day, P.E.’s male partner was not written up for the more egregious error of shooting an unarmed subject. Her partner later told her the instructor had spoken to him and another male classmate and they were both told not to worry because they would not be written up. In another exercise, P.E. received her third suitability notation because her instructor believed that she hesitated before shooting and waited until her partner told her to shoot. P.E. disputes this account. That same day, P.E. received her fourth suitability notation for failing to use deadly force in a mock carjacking scenario. The carjacker was already disarmed by the time P.E. had unholstered her weapon, and P.E. believed shooting him would be excessive force.
168. During the training scenarios some of P.E.’s male counterparts had committed similar or worse mistakes than the mistakes P.E. made, but these male counterparts did not receive suitability notations. Further, P.E. was singled out by a male instructor beginning her first day in the tactical training block. Supervisory Special Agent Nguyen, approached P.E. after class and asked her about her military history, which was extensive. After P.E. summarized her military history, Mr. Nguyen walked away without a response. P.E. did not understand why she was singled out by Mr. Nguyen, as there were several other veterans in the class. From that day forward, when P.E. asked questions, Mr. Nguyen verbally berated her. During a review of a scenario, P.E. asked a question and Mr. Nguyen yelled and cursed at her. Thereafter, Mr. Nguyen would talk to the male Agent Trainees but would not address any questions from P.E.
169. On or about October 25, 2016, P.E. was required to appear before a Trainee Review Board. After she appeared before the board, the Assistant Director of the Training Division, discharged her from Basic Training, with just fifteen training days left.
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170. While P.E. currently works elsewhere, she has continued to seek positions in law enforcement, and would prefer to be reinstated so that she can complete Basic Training under a non-discriminatory evaluation process and become an Agent.
“B.G.” 171. Plaintiff B.G., a woman, earned a degree in International Relations from the State University of New York at Albany, where she led her graduating class as the Commencement Day Speaker. She went on to pursue a career within the U.S. Intelligence Community for a decade, before joining the FBI. 172. In 2018, B.G. attended Basic Training as an Agent Trainee. During Basic Training, B.G. passed her physical fitness test, all academic tests, and firearms test with impressive scores. 173. B.G. received a few suitability notations, all from the Tactical Training Unit. B.G. observed that the Tactical Training Unit instructors treated men and women differently. When a female and male Agent Trainee were partnered together for an exercise, the instructors would pay much closer attention to the woman’s actions in the exercise. 174. On multiple occasions during the Defensive Tactics instruction for B.G., the instructors precluded B.G. from grappling with other students, which was the ordinary way for students to practice. Instead, Defensive Tactics instructors Sirko and Bulinda repeatedly singled B.G. out to grapple with them. Very rarely, if ever, were male trainees required to grapple with Defensive Tactics instructors. Mr. Sirko and Mr. Bulinda consistently targeted female Trainees in B.G.’s class to grapple with them. 175. Three weeks prior to B.G.’s graduation, the Trainee Management Unit informed her that “she did not meet the standard” in defensive tactics required for graduation because she had failed her grappling test. B.G. failed the grappling portion of her exam because she
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allegedly had a “lazy escape” meaning that she successfully escaped the scenario, but did not do so forcefully enough. Although B.G. had made a full effort to escape, and was successful, she was judged more harshly due to her weight and stature. Her score was further lowered for allegedly turning her back to her partner, which was not accurate. When B.G. took the retest, she was not paired with another student, as was the usual practice, and instead was paired with an instructor, thereby increasing the difficulty of the test.
176. The Defensive Tactics instructors never informed B.G. that she was deficient in grappling, nor did they articulate why she continued to be singled out to fight by the instructors. Defensive Tactics instructors did not issue a suitability notation to inform B.G. of her perceived missteps until after her grappling test. Further, she was not given a performance plan for improvement. This practice contrasts greatly with how other units at the Academy operate, including the Firearms Training Unit, which offers comprehensive remediation to ensure trainee success. Firearms instructors inform both the student and his/her supervisor of a possible deficiency and offer timely remedial sessions to improve the trainee’s technique.
177. B.G. was required to leave Quantico the same day she was notified of her discharge. The FBI did not give her time to make arrangements to move her belongings. Because she had relocated from a military assignment overseas to attend Basic Training, she was forced to leave her belongings at Quantico, where they were confiscated by the FBI.
178. After she was discharged from Basic Training, G.B. accepted a lower level position working with the FBI as an Operational Support Technician because she wanted to maximize her opportunity to return to the training program and become an Agent. G.B. wishes to be reinstated so she can complete Basic Training under a non-discriminatory evaluation process and become an Agent.
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“W.M.” 179. Plaintiff W.M., a woman, earned a Bachelor of Arts in Political Science from North Carolina State University, and a Master of Arts in Political Science from the University of North Carolina-Chapel Hill. Beginning in September 2014, W.M. worked for the FBI as a Special Operations Specialist for four years. 180. In 2018, W.M. attended Basic Training as an Agent Trainee. 181. During Basic Training, W.M. passed the physical fitness test, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations. 182. W.M. received four suitability notations, all from the Tactical Training Unit. W.M. received two of these suitability notations on June 18, 2018, for scenarios in which the majority of Agent Trainees in her section and at least one other section struggled and failed. On this day specifically, approximately half of the class received suitability notations for the same scenarios as W.M. When W.M. received these suitability notations, she was notified that she was under Suitability Review. However, several male Agent Trainees in W.M.’s class had more than two suitability notations and were not selected for a Suitability Review. On June 20, 2019, W.M. received a third for an accidental discharge of her weapon in a scenario where she was specifically instructed not to unload her weapon prior to beginning a “dry fire” exercise. Because a dry fire exercise is one in which the participants shoot an unloaded weapon, W.M. faced an impossible choice—disobey a direct order or follow orders and discharge her weapon where she was not supposed to. W.M. received her fourth suitability notation, from a sub-unit of the Tactical Training Unit that handles driving tests, when she did not pass her first driving test. However, when she retook the test, W.M. passed it.
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183. While under Suitability Review, W.M. was required to appear before a Trainee Review Board. At the time she was placed under Suitability Review, four male Agent Trainees and two other female Agent Trainees were also selected for review. All male Agent Trainees undergoing suitability review had more suitability notations than W.M. Of the men, one was allowed to return to training without having to appear before the Trainee Review Board. Two others appeared before a Trainee Review Board and were allowed to return to training. Only the fourth male was discharged from Basic Training. The other two female Agent Trainees, like W.M., were discharged from Basic Training.
184. After she appeared before the Trainee Review Board, the Assistant Director of the Training Division discharged W.M. from Basic Training, approximately two hours before she was scheduled to take the final tactics test, which was also the final test remaining in training. She was given no option for remedial training, as is the standard with other units in Basic Training. Furthermore, the Trainee Review Board did not recommend W.M. for re-employment with the FBI due to “lack of emotional maturity and evasiveness.” However, prior to attending the Basic Training, W.M. had been highly successful in her previous position, earning near perfect or perfect annual reviews and several performance-based awards. Upon hearing of her dismissal from the Basic Training, W.M.’s previous supervisor and Executive Management quickly took action to have her re-instated because of her previous reputation as a highperforming employee. W.M. has continued to receive a perfect performance rating as a Staff Operations Specialist from her current FBI office, the Charlotte Division, Raleigh Resident Agency.
185. W.M. accepted a lower level position working with the FBI as a Staff Operations Specialist because she wanted to maximize her opportunity to return to the training program and
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become an Agent. W.M. wishes to be reinstated so she can complete Basic Training under a non-discriminatory evaluation process and become an Agent.
“C.S.” 186. Plaintiff C.S., a woman, graduated from Baldwin-Wallace College with a Bachelor of Science in Psychology in December 2010. Following graduation, she worked for a mental health agency for approximately four years, then as a Probation Officer for more than two years. 187. In 2017, C.S. attended Basic Training as an Agent Trainee. During Basic Training, C.S. passed the physical fitness test, all academic tests, pistol and carbine firearms qualifications, the defensive tactics test, and other performance tests and evaluations. 188. C.S. received three suitability notations, all from the Tactical Training Unit. On May 23, 2017, she received her first suitability notation for lack of muzzle discipline on the first day of tactical training exercises in Hogan’s Alley. The particular exercise involved fixing handgun malfunctions in the field. Prior to this day, C.S.’s class had only ever worked on firearm malfunctions on the firing line. During this training, C.S. was not sure of where to go to clear her weapon, and did not understand the supervisor’s instructions. C.S. had never had any prior issues with muzzle control when she was training with the Firearms Training Unit. 189. The same suitability notation also stated that C.S. acted unprofessionally with a male Agent Trainee during a jovial “Wild West” scenario. Both she and the male Agent Trainee were friends and made lighthearted jokes with each other during the scenario, however, only C.S. received a suitability notation, not the male Agent Trainee. Although C.S. did not want to sign the suitability notation, which she believed was inaccurate, she had been advised to refrain from arguing with or challenging the authority of Tactical Training Unit instructors because they “aren’t like the rest of the academy instructors.”
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190. C.S. received her next two suitability notations during her tactical exam on July 11, 2017, both for “judgement issues with deadly force.” C.S. made a mistake due to confusion over the instructor’s failure to end the scenario. Worse, the instructor did not tell her that she had done anything wrong, and thus when the scenario was repeated, and the instructor again failed to end the scenario, C.S. continued as she had before, making the same error.
191. C.S. was initially told (along with others who did not pass) that she would be given a re-test on July 14, 2017. However, C.S. was ultimately denied the opportunity to do so as she was referred to the Trainee Review Board and on July 14, 2017, the Assistant Director of the Training Division discharged her from Basic Training.
192. Meanwhile, a male Agent Trainee in C.S.’s class who also failed the Tactics exam and was referred to the Trainee Review Board was allowed to re-take the tactical training exam and later graduated from the Academy. Further, throughout her tactical training, C.S. had participated in many exercises that involved multiple situations which required discretion and judgement with deadly force, and did not have an issue with deadly force. In contrast, a male Agent Trainee in her class had “issues with deadly force” during a tactical training scenario when he entered a motel room and shot an innocent, unarmed man in the bathroom. He was not referred to the Trainee Review Board for this significant error in judgment and was allowed to graduate.
193. Following her discharge from the FBI, C.S. has continued to work in law enforcement positions, but she would prefer to be reinstated so she can complete Basic Training under a non-discriminatory evaluation process and become an Agent.
“L.S.” 194. Plaintiff L.S., a woman, attended Basic Training, then called New Agent Training, in 2015 as an Agent Trainee.
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195. During Basic Training, L.S. passed the physical fitness test multiple times, all academic tests, the pistol and carbine qualifications, the defensive tactics test, and other performance tests and evaluations.
196. L.S. received three suitability notations, all from the Tactical Training Unit. 197. In the tactical training block, L.S.’s instructors treated her and other female Agent Trainees in an inappropriate sexualized manner. On September 29, 2015, L.S.’s class participated in a Moot Court practical exercise in which an undercover employee played the role of a fourteen-year-old girl who was picked up by an adult pedophile that led to the subsequent arrest of the pedophile. L.S. was assigned the undercover employee role for her group. L.S.’s Primary Tactical Instructor, Supervisor Special Agent Gary Galdes, told L.S. that she should wear “short-shorts, pigtails, pink lipstick, and chew bubblegum.” Mr. Galdes’s comments made L.S. extremely uncomfortable. On the day of the exercise, L.S. opted to wear jeans, a long sleeve shirt, and a backpack. While she was changing for the exercise, L.S. noticed another female trainee putting on short-shorts and styling her hair into pigtails. L.S. asked her classmate why she was dressing in that manner, to which her classmate responded, “I’m giving him [Mr. Galdes] what he wants.” When L.S. entered her classroom, Galdes asked her why she was not wearing short-shorts, pigtails, and pink lipstick, and chewing bubblegum. Again, Mr. Galdes’s comment made L.S. feel uncomfortable. 198. Mr. Galdes made an additional comment to L.S. that made her feel uncomfortable when he told her that she was going to be his “special project.” L.S. felt the comment was singling her out. When L.S. spoke with her counselor about the comment, the counselor suggested that some of the instructors did not like petite attractive women. L.S.’s anxiety increased because she felt Mr. Galdes was scrutinizing her for something over which she had no
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control. On September 28, 2015, L.S. learned from a classmate that SSA Galdes made a derogatory comment about women when he was chastising a male Agent Trainee about his performance during a tactical exercise. L.S.’s classmate told her Galdes admonished the Agent Trainee by saying “you are no better than a fucking female.” L.S. believes this comment clearly showed Mr. Galdes’s hostility toward women. L.S. reported Mr. Galdes’s comments to class supervisor Supervisory Special Agent Jill Sheets, Class Counselor Steven Spahn, and Special Agent Kieko Wagner. Ms. Sheets interviewed the trainee to whom Mr. Galdes made the comment, and confirmed that Mr. Galdes had in fact made the comment.
199. In September 2015, after L.S. received her third suitability notation in the Tactical Training Unit, L.S. was placed under Suitability Review and required to appear before the Trainee Review Board (then called the New Agent Review Board). The Board recommended L.S. be discharged, and on October 2, 2015 – just two weeks before graduation –the Assistant Director of the Training Division discharged L.S. from Basic Training.
200. While L.S. was at the Academy, she was aware of a male Agent Trainee in her class who failed the Handcuffing One exam—an exam in the Tactical Training block. The male trainee passed when he (and other students who failed) was permitted to retake the exam. The male Agent Trainee later failed the Handcuffing Two exam, which per the policy, should have resulted in an automatic dismissal from Basic Training for failure of two exams. However, on October 2, 2015, the male trainee was removed from the classroom during a non-defensive tactics class and permitted to retake Handcuffing Two (without other members of the class present). He was allowed to continue on and graduate with his class, indicating a bias in favor of permitting men multiple opportunities to re-take tests in order to qualify for graduation, despite poor performance, and in violation of documented policy.
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201. During a conversation that L.S. had with Supervisory Special Agent Jill Sheets (one of L.S.’s class supervisors), Ms. Sheets stated that “It’s as if they want you to fail” regarding the way L.S. was being treated and singled out in Tactical Training block, indicating a bias within the block and a perception that Tactical Training Unit instructors targeted particular Agent Trainees.
“G.T.” 202. Plaintiff G.T., a woman, graduated from the University of Maryland with a Bachelor of Arts in Political Science. She is licensed to practice law in Virginia, Pennsylvania and New Jersey and litigated for four years. 203. In 2017, G.T. attended Basic Training as an Agent Trainee. During Basic Training, G.T. passed the physical fitness test on numerous occasions, all academic tests, the pistol and carbine firearms qualifications, the defensive tactics test, as well as other performance evaluations. 204. G.T. received three suitability notations, all from the Tactical Training Unit. She was informed she was being referred to the Trainee Review Board after she received her first two suitability notations. For one of her suitability notations, half of G.T.’s class received a suitability notation for the same scenario. G.T. knew of many men in her class who had more than two suitability notations who were not recommended for a Trainee Review Board. 205. When G.T. was brought before the Trainee Review Board on February 1, 2018, she was presented with a third suitability notation from the Tactical Training Unit. The tactical training test was scheduled for February 2, 2018, the day after G.T.’s Trainee Review Board. Supervisory Special Agent Cortney Merkel, G.T.’s counselor, requested the board allow G.T. to take the test before the board issued a recommendation. However, G.T. was not permitted to take the test. After G.T. appeared before the Trainee Review Board, the Assistant Director of the
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Training Division discharged G.T. on February 1, 2018, just two weeks before graduation. No offer of remedial training was provided to G.T. She and other female trainees were told by the TRB that there was not enough time before graduation for them to receive remedial training; however, when several male Agent Trainees failed the tactical training exam, they were given the opportunity for additional training and a retest less than two weeks before graduation.
206. Following her termination, G.T. has been working for a government contractor, but she would prefer to be reinstated so she can complete Basic Training under a nondiscriminatory evaluation process and become an Agent.
T.S. 207. Plaintiff T.S., a woman, earned her bachelor’s degree in Public Relations in 2001. Prior to joining the FBI, she worked in a casualty office supporting the U.S. military. 208. Plaintiff T.S. attended Basic Training, then called New Agent Training, in 2016 as an Agent Trainee. 209. During Basic Training, T.S. passed all academic tests, with an average of 95%, the physical fitness test, the firearms qualifications, the defensive tactics test, the tactical training unit test (on her second attempt), and other performance tests and evaluations. Despite having passed every test required to successfully complete Basic Training up to that point, T.S. was not permitted to graduate with her class. 210. T.S. received seven suitability notations from the Tactical Training Unit, and, following a suitability review, was sent before the Trainee Review Board (then called the New Agent Review Board.) Assistant Director of the Training Division discharged T.S., consistent with the recommendation of the Board on May 13, 2016. 211. Near the beginning of tactical training, before he had an adequate basis to form an opinion about her suitability to become a Special Agent, SSA Wiley, who was the supervisor for
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T.S.’s class, told SA Youngblood, who was the Counselor assigned to T.S.’s training class, that he intended to have T.S. dismissed from Basic Training. Other instructors admitted to keeping an extra close watch over T.S., to catch any violations.
212. T.S. received three suitability notations for related issues within a 40 minute period on March 31, 2016. The instructors had given some contradictory direction to the class. Then, T.S. was not corrected about the error the first time she made it at 2:40 pm, and instructors simply kept a closer eye on her for the next 40 minutes and were able to identify two additional instances when she made the same error. Had an instructor corrected her after the first instance, the error would not have been repeated. Moreover, when T.S. was informed about the suitability notation, she was told there would be one notation for the error, but it was then documented as three notations, and done in a manner suggesting that T.S. had been informed about the earlier error, and simply failed to follow the correction, although none had been given. Moreover, T.S. observed many of her classmates engaged in the same conduct as she was, but they were not given suitability notations for engaging in the same sort of behavior.
213. On April 26, 2016, SSA Mulligan said to T.S. in a threatening tone, “This will not end well. Don’t get involved in the process. Take what we’re giving you.” She understood Mulligan to mean that training was not going to end well for her, that she would be pushed out.
214. T.S. received three additional suitability notations during training scenarios on May 3, 2016. In two of the scenarios, T.S.’s partner initiated actions which she then had to back up, even though those were not the tactics she would have chosen herself. Nonetheless, she was given a suitability notation, while her partner for the exercise was not. Other class members also engaged in similar or more egregious behavior and were not given suitability notations.
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215. After T.S. had been selected for a suitability review, but before she was sent before the Board, she was given one more suitability notation.
216. In addition to the seven suitability notations that T.S. received, three suitability observations were placed in her file, but she was not informed about them. They were presented to the Board, but because she was unaware of them, and unaware they had been presented to the Board, she did not have the opportunity to address the suitability observations in her Board testimony.
217. T.S. was the only trainee in her class sent to the Board. One male trainee who failed the tactical test twice and received multiple suitability notations was not sent to the Board. Because half the class had failed the first tactical test, the Training Unit decided not to count the first failure in applying the rule that failing two tests should result in automatic dismissal. Nonetheless, they did count T.S.’s failure of the first tactics exam as one reason to send her before the Board, while declining to send a man who had failed twice, and also had multiple suitability notations. Another male trainee, who failed the defensive tactics test twice, was subject to the automatic discharge policy, but was reinstated and permitted to re-start training. In contrast, T.S., who passed all required tests up to that point, was discharged on May 13, 2016 and was not given the option of reinstatement or re-doing training. Indeed, upon her discharge she was told she could not re-apply to be an agent.
218. While T.S. has been employed elsewhere since her termination from the FBI, she would prefer to be reinstated so that she can complete Basic Training under a non-discriminatory evaluation process and become an Agent. V. CAUSES OF ACTION
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COUNT ONE Violation of Title VII, 42 U.S.C. § 2000e et seq., (Disparate Treatment – Agent Trainee Subclass) Brought by Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, and “T.S.” on behalf of themselves
and others similarly situated.
219. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 65 and 77 through 194.
220. This claim is brought by Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, and “T.S.” on behalf of themselves and the Agent Trainee Subclass as defined above.
221. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq., and constitutes a continuing violation of that Act. Defendant has engaged in a pattern or practice of intentional discrimination against its female Agent Trainees in issuing Suitability Notations, initiating Suitability Reviews, referring them for Trainee Review Boards, and making discharge, recycling, and reinstatement decisions.
222. The discharge decisions were made by a single decisionmaker, the Assistant Director of the Training Division, and only a small group of decisionmakers were involved in the preliminary steps of issuing Suitability Notations, Suitability Reviews, and Trainee Review Boards.
223. Defendant’s discriminatory practices described above have denied members of the Agent Trainee Subclass the opportunity to graduate from Basic Training and enter Agent positions, and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
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224. The conduct described above caused the members of the Agent Trainee Subclass emotional harm and other forms of harm proximately caused by the FBI’s discriminatory conduct.
225. Agent Trainee Plaintiffs request relief as provided in the Prayer for Relief below. COUNT TWO
Violation of Title VII, 42 U.S.C. § 2000e et seq., (Disparate Impact – Agent Trainee Subclass) Brought by Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, and “T.S.” on behalf of themselves
and others similarly situated. 226. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 65 and 77 through 194. 227. This claim is brought by Plaintiffs Paula Bird, Clare Coetzer, Lauren Rose, Danielle Snider, “D.A.”, “S.B.”, “D.C.”, “P.E.”, “W.M.”, “C.S.”, “L.S.”, “G.T.”, and “T.S.” on behalf of themselves and the Agent Trainee Subclass as defined above. 228. The conduct described above violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq., and constitutes a continuing violation of that Act. 229. Defendant has maintained a system for discharge from Basic Training that has had an adverse impact on the Agent Trainee Subclass. Its policies and practices for issuing Suitability Notations and making other decisions culminating in discharge from the New Agent Training program without reinstatement or recycling into the program is excessively subjective. A small group of decisionmakers, similarly trained and working closely together, exercise discretion over issuing Suitability Notations. A smaller group of decisionmakers, Executive Management of the Trainee Management Unit, determines if a Suitability Review will be conducted, conducts such reviews, and determines if a Trainee Review Board will be conducted. A similarly small group participates in the Trainee Review Board and makes a recommendation
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about discharge. A single decisionmaker, the Assistant Director of the Training Division, decides on discharge.
230. Defendant has failed to create or maintain the data that would allow analysis of the impact of each of these policies and practices separately. It does not maintain records of individuals who engage in behaviors similar to those issued suitability notations, but who are not issued suitability notations. It does not appear that records of suitability notations are maintained in a database, or whether information about those potentially eligible for Suitability Review or Trainee Review Board is similarly tracked in a database. Defendant’s policies and procedures regarding issuing Suitability Notations, determining who will undergo a Suitability Review, and then who will go before the Trainee Review Board are thus not capable of separation for analysis, and accordingly the entire decision-making process for termination decisions may be analyzed as one employment practice. 42 U.S.C. 2000e-2(k)(1)(B)(i).
231. The FBI’s Suitability Notation through discharge policies challenged herein are not job related or consistent with business necessity. There are less discriminatory alternatives which would address the FBI’s business needs more effectively than its current practices.
232. The FBI’s discriminatory practices described above have denied the Agent Trainee Subclass members the opportunity to graduate from Basic Training and enter Agent positions, and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
233. The Agent Trainee Plaintiffs request relief as provided in the Prayer for Relief below.
COUNT THREE Violation of Title VII, 42 U.S.C. § 2000e et seq., (Disparate Treatment – Analyst Trainee Subclass)
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Brought by Plaintiffs Spencer Lee and “B.A.” on behalf of themselves and others similarly situated.
234. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 54, and 66 through 194.
235. This claim is brought by Plaintiffs Spencer Lee and B.A. on behalf of themselves and the Analyst Trainee Subclass as defined above.
236. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq., and constitutes a continuing violation of that Act. Defendant has engaged in a pattern or practice of intentional discrimination against its female Analyst Trainees in issuing Suitability Notations, initiating Suitability Reviews, referring them for Trainee Review Boards, and making discharge, recycling, and reinstatement decisions.
237. The discharge decisions were made by a single decisionmaker, the Assistant Director of the Training Division, and only a small group of decisionmakers were involved in the preliminary steps of issuing Suitability Notations, Suitability Reviews, and Trainee Review Boards.
238. Defendant’s discriminatory practices described above have denied members of the Analyst Trainee Subclass the opportunity to graduate from Basic Training and enter Analyst positions, and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
239. The conduct described above caused the members of the Analyst Trainee Subclass emotional harm and other forms of harm proximately caused by the FBI’s discriminatory conduct.
240. Analyst Trainee Plaintiffs request relief as provided in the Prayer for Relief below.
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COUNT FOUR Violation of Title VII, 42 U.S.C. § 2000e et seq., (Disparate Impact – Analyst Trainee Subclass) Brought by Plaintiffs Spencer Lee and “B.A.” on behalf of themselves and others similarly
situated. 241. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 55, and 66 through 194. 242. This claim is brought by Plaintiffs Spencer Lee and B.A. on behalf of themselves and the Analyst Trainee Subclass as defined above. 243. The conduct described above violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and constitutes a continuing violation of that Act. 244. Defendant has maintained a system for discharge from Basic Training that has had an adverse impact on the Analyst Trainee Subclass. Its policies and practices for issuing Suitability Notations and making other decisions culminating in discharge from the New Intelligence Analyst Training program without reinstatement or recycling into the program is excessively subjective. A small group of decisionmakers, similarly trained and working closely together, exercise discretion over issuing Suitability Notations. A smaller group of decisionmakers, Executive Management of the Trainee Management Unit, determines if a Suitability Review will be conducted, conducts such reviews, and determines if a Trainee Review Board will be conducted. A similarly small group participates in the Trainee Review Board and makes a recommendation about discharge. A single decisionmaker, the Assistant Director of the Training Division, decides on discharge. 245. Defendant has failed to create or maintain the data that would allow analysis of the impact of each of these policies and practices separately. It does not maintain records of individuals who engage in behaviors similar to those issued suitability notations, but who are not issued suitability notations. It does not appear that records of suitability notations are maintained
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in a database, or whether information about those potentially eligible for Suitability Review or Trainee Review Board is similarly tracked in a database. Defendant’s policies and procedures regarding issuing Suitability Notations, determining who will undergo a Suitability Review, and then who will go before the Trainee Review Board are thus not capable of separation for analysis, and accordingly the entire decision-making process for termination decisions may be analyzed as one employment practice. 42 U.S.C. 2000e-2(k)(1)(B)(i).
246. The FBI’s Suitability Notation through discharge policies challenged herein are not job related or consistent with business necessity. There are less discriminatory alternatives which would address the FBI’s business needs more effectively than its current practices.
247. The FBI’s discriminatory practices described above have denied the Analyst Trainee Subclass members the opportunity to graduate from Basic Training and enter Analyst positions, and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
248. The Analyst Trainee Plaintiffs request relief as provided in the Prayer for Relief below.
COUNT FIVE Violation of Title VII, 42 U.S.C. § 2000e et seq.,
(Disparate Treatment) Brought by Plaintiff “B.G.” on behalf of herself. 249. Plaintiff B.G. repeats and realleges the allegations contained in paragraphs 1 through 54, and 77 through 194. 250. This claim is brought by Plaintiff B.G. on behalf of herself. 251. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Defendant discriminated against B.G. in discharging her from Basic Training because of her sex.
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252. B.G. was qualified for the Agent Trainee position, performed her duties adequately and met the expectations of her employer, having completed all but one of the required academic and skills tests with impressive scores. During grappling training sessions B.G. did not receive feedback indicating a deficiency in grappling skills.
253. Defendant treated B.G. differently than her male colleagues when it singled her out in grappling training sessions and partnered her with instructors rather than other students in training sessions and her grappling retest. Defendant applied subjective metrics of the grappling tests more harshly to B.G. because of her gender and relied on such tests to discharge her from Basic Training.
254. B.G.’s sex was the determining factor and/or a motivating factor in her discharge from Basic Training.
255. Defendant’s discriminatory practices described above denied B.G. the opportunity to graduate from Basic Training and enter an Agent position, and compensation and promotions to which she is entitled, which has resulted in the loss of past and future wages and other job benefits.
256. The conduct described above caused B.G. emotional harm and other forms of harm proximately caused by the FBI’s discriminatory conduct.
257. Agent Trainee Plaintiffs request relief as provided in the Prayer for Relief below.
COUNT SIX Violation of Title VII, 42 U.S.C. § 2000e et seq.,
(Hostile Work Environment) Brought by Plaintiffs Erika Wesley and B.A. on behalf of themselves. 258. Plaintiffs Erika Wesley and B.A. repeat and reallege the allegations contained in paragraphs 1 through 54, and 77 through 194.
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259. Defendant created hostile environments for Plaintiffs Erika Wesley and B.A. Defendant denied Ms. Wesley and B.A. a non-abusive workplace and the opportunity to work without, fear, intimidation, ridicule, upset, humiliation and unwelcome disturbances. Defendant’s conduct was severe and pervasive, and that conduct altered the terms, conditions and enjoyment of Ms. Wesley’s and B.A.’s employment with Defendant. Reasonable female employees would find the conduct abusive, offensive and humiliating.
260. Supervisors have made and condoned the actions of other employees in making comments to female employees, including Ms. Wesley and B.A., that were unwelcome and based on sex.
261. These comments were sufficiently severe and pervasive as to alter the terms, conditions and privileges of employment, and to create an abusive, intimidating, hostile and offensive working environment for Ms. Wesley and B.A.
262. This conduct constitutes sexual harassment and discrimination based on sex in violation of § 703 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2.
263. These supervisors were acting within the scope of their employment with defendants when they engaged in harassment of and discrimination against female employees.
264. This harassment and discrimination took place in the workplace during working hours.
265. Defendant had actual and constructive knowledge of harassment of and discrimination against Ms. Wesley and B.A. and failed to take remedial action of any kind whatsoever.
266. Defendant acted in such a manner as to render the FBI’s EEO or anti-harassment policies meaningless as a policy to address and/or combat sexual harassment and abuse in the
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workplace. Nonetheless, Ms. Wesley and B.A. expressly complained about the harassment. Ms. Wesley informed Trainee Management Unit Chief Kellie Holland in the beginning of March 2018. B.A. informed her class counselor of the harassment in late May or early June 2018.
267. As a proximate result of Defendant’s actions, Ms. Wesley and B.A. suffered humiliation, fear, intimidation, ridicule, upset, economic losses and other emotional injuries and will suffer severe damages and injuries including but not limited to, humiliation, loss of selfesteem, hurt, fear, frustration, emotional distress, inconvenience and damage to their professional reputations.
268. The conduct alleged above, which was permitted to occur by Defendant, was undertaken with malice or with reckless indifference to the federally protected rights of Ms. Wesley and B.A. Defendant is liable to Ms. Wesley and B.A. for violation of § 703 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2.
COUNT SEVEN Violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.
(Discrimination in Denial of Reasonable Accommodations) Brought by Plaintiffs Spencer Lee and Erika Wesley on behalf of themselves. 269. Plaintiffs Spencer Lee and Erika Wesley repeat and reallege the allegations contained in paragraphs 1 through 54, and 77 through 194. 270. Ms. Lee and Ms. Wesley have disabilities under the meaning of 29 U.S.C. § 705(20) and 42 U.S.C. § 12102(1)(A). Ms. Lee has debilitating migraines which substantially limit major life activities and major bodily functions when they are active. Ms. Wesley’s medical condition substantially limits her major life activities and major bodily functions when it is active. It impairs her ability to sit for long periods of time, causes migraines, severe allergies, and other debilitating symptoms.
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271. Prior to attending Basic Training, Ms. Lee and Ms. Wesley gave notice of their disabilities by formally requesting reasonable accommodations.
272. Ms. Lee and Ms. Wesley were qualified for their positions as Analyst Trainees and were able to perform the essential functions of the positions with reasonable accommodations.
273. The FBI denied Ms. Lee and Ms. Wesley reasonable accommodations. Ms. Lee was denied her accommodations when her instructor, Mr. Zwiesler, and her counselor, Ms. Bouey, interfered with her ability to store her medications in a personal refrigerator, carry water to class, and eat small amounts of food outside of mealtimes. Ms. Wesley was denied her accommodations when her instructor, Mr. Zwiesler, interfered with her ability to bring a purse containing medicine to class and when her counselor, Ms. Bouey required her to unplug her personal refrigerator and remove the medical grade air purifier.
274. Ms. Bouey and Mr. Zwiesler were acting within the scope of their employment when they denied Ms. Lee’s and Ms. Wesley’s accommodations.
275. Defendant’s discriminatory practices described above have caused Ms. Lee and Ms. Wesley harm, including severe emotional distress and physical harm, including adverse health effects from the removal of the accommodations.
276. Accordingly, Defendant violated Ms. Lee’s and Ms. Wesley’s rights protected by Rehabilitation Act of 1973, 29 U.S.C. § 794.
COUNT EIGHT Violation of Title VII, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, § 29
U.S.C. § 794. (Retaliation) Brought by Plaintiff Erika Wesley on behalf of herself.
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277. Plaintiff Wesley repeats and realleges the allegations contained in paragraphs 1 through 54, and 77 through 194.
278. Ms. Wesley opposed unlawful employment practices by objecting to sexual advances and sexual and gender-based comments, objecting to the denial of her and Ms. Lee’s reasonable accommodations, and filing internal complaints of harassment and disability discrimination, then EEO charges, and ultimately this lawsuit. Such activities are protected under § 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and the Americans with Disabilities Act, 42 U.S.C. § 12203. Such activities were known to her management at the FBI.
279. Following such actions, Ms. Wesley faced harassing actions such as issuing suitability notations during Basic Training, removing her previously approved accommodations during Basic Training, being denied the opportunity to telework, which she was previously permitted to do, having her assigned position eliminated, and not being assigned work consistent with her Analyst position and grade level. These actions constitute retaliation in violation of § 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3, and the Rehabilitation Act of 1973, § 29 U.S.C. § 794.
280. Supervisors were acting within the scope of their employment when they retaliated against Ms. Wesley.
281. Defendant had actual and constructive knowledge of the retaliation perpetrated against employees and refused to take remedial action of any kind.
282. Defendant’s retaliatory practices described above have caused Ms. Wesley harm, including severe emotional distress and loss of wages.
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283. Accordingly, Defendant violated Plaintiff’s rights protected by § 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3, and the Rehabilitation Act of 1973, § 29 U.S.C. § 794.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request the following relief: 1. Certify the proposed class, with a subclass of Agent Trainees, the Agent Trainee Plaintiffs as Agent Trainee Subclass representatives, and Cohen Milstein Sellers & Toll PLLC and David Shaffer as class counsel; 2. Certify the proposed class, with a subclass of Analyst Trainees, the Analyst Trainee Plaintiffs as Analyst Trainee Subclass representatives, and Cohen Milstein Sellers & Toll PLLC and David Shaffer as class counsel; 3. Enter a declaratory judgment that the practices complained of in the First, Second, Third, and Fourth Causes of Action are unlawful and violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.; 4. Enter a permanent injunction prohibiting the FBI, its officers, agents, employees and successors, from engaging in the discriminatory employment practices complained of herein in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq., as amended; 5. Enter a permanent mandatory injunction requiring the FBI adopt employment practices in conformity with the requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 6. An award of all damages that Plaintiffs, including the Agent Trainee Subclass and Analyst Trainee Subclass, have sustained as a result of the Federal Bureau of Investigation’s conduct, including back pay, front pay, general and special damages for lost compensation and
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job benefits that they would have received but for the discriminatory practices of the Federal Bureau of Investigation;
7. An award of compensatory damages for emotional distress that Plaintiffs, including the Agent Trainee Subclass and Analyst Trainee Subclass, have sustained;
8. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law;
9. Pre-Judgment and Post-Judgment interest, as provided by law; and 10. Such other and further legal and equitable relief, including reinstatement so that plaintiffs may become Agents or Analysts, as this Court deems necessary, just and proper. As to Plaintiff B.G.’s individual claims: 11. An award of all damages that Plaintiff B.G. has sustained as a result of the Federal Bureau of Investigation’s conduct, including back pay, front pay, general and special damages for lost compensation and job benefits that she would have received but for the discriminatory practices of the Federal Bureau of Investigation. 12. An award of compensatory damages and injunctive relief, appropriate to the proof at trial; 13. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law; 14. Pre-Judgment and Post-Judgment interest, as provided by law; and 15. Such other and further legal and equitable relief, including reinstatement, as this Court deems necessary, just and proper. As to Plaintiff Lee’s individual claims:
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16. An award of all damages that Plaintiff Lee has sustained as a result of the Federal Bureau of Investigation’s conduct, including pain and suffering, medical costs, back pay, front pay, general and special damages for lost compensation and job benefits that she would have received but for the discriminatory practices of the Federal Bureau of Investigation.
17. An award of compensatory damages and injunctive relief, appropriate to the proof at trial;
18. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law;
19. Pre-Judgment and Post-Judgment interest, as provided by law; and 20. Such other and further legal and equitable relief as this Court deems necessary, just and proper. As to Plaintiff Wesley’s individual claims: 21. An award of all damages that Plaintiff Wesley has sustained as a result of the Federal Bureau of Investigation’s conduct, including pain and suffering, medical costs, back pay, front pay, general and special damages for lost compensation and job benefits that she would have received but for the discriminatory practices of the Federal Bureau of Investigation; 22. An award of compensatory damages and injunctive relief, appropriate to the proof at trial; 23. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law; 24. Pre-Judgment and Post-Judgment interest, as provided by law; and 25. Such other and further legal and equitable relief as this Court deems necessary, just and proper.
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As to Plaintiff B.A.’s individual claims: 26. An award of all damages that Plaintiff B.A. has sustained as a result of the Federal Bureau of Investigation’s conduct, including back pay, front pay, general and special damages for lost compensation and job benefits that she would have received but for the discriminatory practices of the Federal Bureau of Investigation; 27. An award of compensatory damages and injunctive relief, appropriate to the proof at trial; 28. Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law; 29. Pre-Judgment and Post-Judgment interest, as provided by law; and 30. Such other and further legal and equitable relief as this Court deems necessary, just and proper.
JURY TRIAL DEMANDED Plaintiffs demand a jury trial as to all claims so triable.
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March 16, 2020

Respectfully submitted,
/s/Christine E. Webber Joseph M. Sellers (#318410) Christine E. Webber (#439368) Stacy N. Cammarano, (#1510736) Cohen Milstein Sellers & Toll PLLC 1100 New York Ave. NW ● Fifth Floor Washington, DC 20005 (202) 408-4600 jsellers@cohenmilstein.com cwebber@cohenmilstein.com scammarano@cohenmilstein.com
David J. Shaffer #413484 5012 Aurora Dr. Kensington, Maryland 20895 Phone: 202-210-7424 E-Mail: davidshaffer511@gmail.com
Attorneys for Plaintiffs

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 Case 1:19-cv-01581-KBJ Document 55 Filed 07/23/20 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

PAULA BIRD, et al., on behalf of

)

themselves and a class of those similarly)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

WILLIAM P. BARR,

)

)

Defendant.

)

)

No. 19-cv-1581 (KBJ)

MEMORANDUM OPINION

The plaintiffs in this case are current and former female employees of the

Federal Bureau of Investigation (“FBI”) who allege that they suffered sex-based

discrimination when they were enrolled in the FBI Academy’s Basic Field Training

Course. (See 3d Am. Compl, ECF No. 49, ¶ 1.) Before this Court at present is a motion

for a preliminary injunction that Plaintiffs filed four months after initiating this lawsuit,

seeking to enjoin the FBI from retaliating against them, or any potential witnesses, due

to their participation in this action. (See Pls.’ Mot. for a Prelim. Inj. for Protection

from Retaliation (“Pls.’ PI Mot.”), ECF No. 24.) Plaintiffs’ primary allegations center

on Erika Wesley, a current FBI employee and a plaintiff in this action, who maintains

that her supervisors in the FBI’s Phoenix, Arizona Division (where Wesley works) have

retaliated against her by, among other things, threatening to terminate her, failing to

give her meaningful assignments, and denying requests for reasonable accommodations

for her disability. (See Mem. in Supp. of Pls.’ PI Mot. (“Pls.’ PI Mem.”), ECF No. 24-

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1, at 11.)1 Plaintiffs also point to the experiences of another FBI employee in the Phoenix Division, Mary Martinez, who is not a plaintiff in this matter but submitted a declaration in support of Plaintiffs’ earlier motion for leave to proceed under pseudonym. (See id. at 20–22.) Plaintiffs’ PI motion alleges that, as a result of Martinez’s help with this litigation, Martinez was required to submit excessive documentation to support a request for FMLA leave, and was allegedly placed on AWOL status when the requested leave was initially denied (the FBI ultimately approved Martinez’s leave request and the AWOL citation was eventually removed from her record). (See id. at 28.)
Plaintiffs assert that preliminary injunctive relief is necessary “to protect [Wesley] from irreparable harm to her job and her health” (id. at 7), and “to protect the judicial process from the chilling impact of Defendant’s retaliation bordering on constructive discharge against a named plaintiff, which would deter anyone else from coming forward to join this putative class action or from offering truthful testimony in this matter” (id.). As such, they request an order preliminarily enjoining the FBI “from engaging in any retaliation against any plaintiff or witness in this action[.]” (Proposed Order, ECF No. 24-14, at 1.) They also seek specific relief with respect to Wesley and Martinez aimed at the retaliation that they allege has occurred. (See id. at 1–2.)
For the reasons explained below, it is clear to this Court that Plaintiffs misapprehend the purpose and function of a preliminary injunction, and in fact, this Court lacks jurisdiction to order the FBI to refrain from generally retaliating against
1 Page number citations to the documents that the parties have filed refer to those automatically assigned by the Court’s electronic case-filing system.
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Plaintiffs and witnesses in the manner that Plaintiffs request. Plaintiffs’ PI motion also fails with respect to the specific retaliation claim that has now been brought concerning Wesley (see 3d Am. Compl. ¶¶ 129–34), because Plaintiffs have not established that they have a likelihood of success on the merits of that legal claim, nor have they demonstrated that Wesley is at imminent risk of irreparable harm. Accordingly, Plaintiffs’ motion for a preliminary injunction is DENIED.
I. Plaintiffs’ PI motion is, for the most part, premised on a fundamental misunderstanding of how preliminary injunctions function in a civil action filed in federal court. No less an authority than the Supreme Court of the United States has explained that “[a] preliminary injunction is [] appropriate to grant intermediate relief of the same character as that which may be granted finally.” De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945) (emphasis added). Accordingly, in the De Beers case, the Supreme Court held that, where the requested injunctive relief could not be granted as final relief, it also could not be granted as intermediate relief. And although the De Beers Court dealt with a federal court’s authority to enter a preliminary injunction under a predecessor of the All Writs Act, the Supreme Court indicated clearly that the proper scope of a federal court’s authority to issue injunctive relief as envisioned by Congress is determined based on “the usages and principles of law[,]” and before issuing any injunctive relief, a court must ask “what is the usage, and what are the principles of equity applicable in such a case.” Id. at 219. Thus, a proper motion for a preliminary injunction seeks to enjoin the action that the complaint alleges is unlawful prior to the completion of the litigation, and without
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such a connection between the claim and requested injunction, there is simply no jurisdictional basis for the Court to grant preliminary relief. See, e.g., Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (noting that a court lacks authority to issue a preliminary injunction absent a “sufficiently strong” connection “between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint[,]” and that such a connection exists where “the preliminary injunction would grant relief of the same character as that which may be granted finally” (internal quotation marks and citation omitted)); Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (explaining that “[t]he purpose of interim equitable relief is to protect the movant, during the pendency of the action, from being harmed or further harmed in the manner in which the movant contends it was or will be harmed through the illegality alleged in the complaint”); Make the Rd. New York v. McAleenan, 405 F. Supp. 3d 1, 24 (D.D.C. 2019) (explaining that “a federal court that invokes its authority to enjoin an agency’s conduct preliminarily pending the court’s final order in the matter is thereby effectively accelerating provision of the relief that the plaintiff seeks, prior to the conclusion of the litigation”), rev’d and remanded sub nom. on other grounds, Make The Rd. New York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020); see also 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (3d ed. 2015) (explaining that preliminary injunction entitles the movant to relief before a ruling on the merits precisely because “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”).
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Moreover, and significantly for present purposes, it is important to understand what a preliminary injunction is not: it is not a generic means by which a plaintiff can obtain auxiliary forms of relief that may be helpful to them while they litigate unrelated claims. To the contrary, this Court only possesses the power to afford preliminary injunctive relief that is related to the claims at issue in the litigation, as previously explained, and to get such extraordinary relief, a plaintiff has to satisfy well-established criteria, including demonstrating that they are likely to succeed on the merits of the underlying legal claims, and showing that they will suffer irreparable injury in the absence of a preliminary injunction. See, e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (explaining that a party seeking a preliminary injunction “must establish that [she] is likely to succeed on the merits, that [she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [her] favor, and that an injunction is in the public interest”).
II. With respect to the PI motion at issue here, the disconnect between the underlying claims in the lawsuit and the alleged basis for preliminary relief could not be more evident. This is because, in their complaint, Plaintiffs allege that the FBI authorized, or engaged in, sex-discrimination while Plaintiffs were in the FBI training academy and seek, inter alia, to enjoin such conduct (see 3d Am. Compl., Prayer for Relief, ¶¶ 4–5), but in the PI motion, Plaintiffs request an injunction “to protect all of the name plaintiffs” from potential reprisals for participating in this legal action as a general matter. (Pls.’ PI Mem. at 7.) The requested preliminary injunctive relief bears no resemblance to the relief that the Plaintiffs request in the underlying action. (See 3d
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Am. Compl., Prayer for Relief, ¶¶ 1–10.) And Plaintiffs are wrong to tout the existence of the All Writs Act—which permits this Court to “issue all writs necessary or appropriate in aid of [its] respective jurisdiction[,]” 28 U.S.C. § 1651(a)—as the basis for an argument that the Court has general jurisdiction “‘to preserve its process and to prevent and rectify punishment of those who appeared before it.’” (Pls.’ PI Reply at 30 (quoting EEOC v. Locals 14 & 15, Int’l Union of Operating Engineers, 438 F. Supp. 876, 879 (S.D.N.Y. 1977)).) It is now well established that “the express terms of the [All Writs] Act confine the power of the [Court] to issuing process ‘in aid of’ its existing statutory jurisdiction; the Act does not enlarge that jurisdiction[.]” Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999) (emphasis added). Thus, the Court is authorized to issue an injunction concerning acts of the defendant that are not alleged in the complaint under the All Writs Act only when those acts are “closely related to the facts in the complaint[.]” Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002).
As this Court has already explained, no such close a connection exists in this case, despite Plaintiffs’ arguments to the contrary. (See Pls.’ PI Reply at 7.) Instead, just as in Adair, the only connection between the complaint and Plaintiffs’ request for injunctive relief to protect them from reprisals is that there is a lawsuit pending and Plaintiffs assert that the FBI has (or may) retaliate against them and potential witnesses. See Adair, 193 F. Supp. 2d at 201 (citations omitted). The Adair court recognized that such a connection is insufficient to allow this Court to invoke the All Writs Act to award the general injunctive relief that Plaintiffs seek, see id., and this Court does the same.
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The authorities that Plaintiffs cite and rely upon are not to the contrary. (See Pls.’ Reply at 9.) For instance, Plaintiffs cite to Holly Sugar Corp. v. Johanns, No. 03cv-1739, 2006 WL 8451547, at *4 (D.D.C. Aug. 1, 2006), for the proposition that courts can issue preliminary injunctions to protect witnesses based on allegations not contained in the complaint. But that statement is nothing more than dicta, and the court in Holly Sugar actually found that it did not have jurisdiction to issue the requested injunction because “the issues raised by the plaintiffs in their request for a preliminary injunction are . . . clearly unrelated to the issues alleged in the Complaint.” Id. Similarly, in Sheehan v. Purolator Courier Corp., 676 F.2d 877 (2d Cir. 1981), the Second Circuit merely held that a court had jurisdiction to issue preliminary injunctive relief with respect to retaliation claims that were asserted in a pending complaint, but for which the plaintiff was still awaiting a right to sue letter from the EEOC. See id. at 885–86. Finally, the factual circumstances in EEOC v. Locals 14 & 15, International Union of Operating Engineers, 438 F. Supp. 876 (S.D.N.Y. 1977), are entirely inapposite, as the court there issued a preliminary injunction with respect to retaliation that had occurred after the trial in the underlying matter and while the case was on appeal, based on a determination that the “retaliation charges are ancillary to the main issues in a case and should, partially because of the possibilities of a remand, be heard by the district court even while the main issues were pending appeal.” Id. at 880.2
2 The court also found that Section 706(f)(2) of Title VII, 42 U.S.C. § 2000e-5(f)(2), which authorizes the EEOC to pursue preliminary relief while it investigates a charge, provided an independent jurisdictional basis for it to issue the requested injunction. See Locals 14 & 15, 438 F. Supp. at 880. In any event, this case is by no means binding on this Court, and to the extent that this 43 year-old case can be read broadly to support the notion that a district court has jurisdiction to reach out into the world and issue injunctive relief whenever claims of retaliation, untethered to any claim in a complaint, are brought to its attention, this Court rejects that proposition.
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Thus, Plaintiffs’ motion fails at the threshold—due to a lack of jurisdiction— even prior to the Court’s consideration of the well-worn PI factors. Nevertheless, this Court is confident that Plaintiffs’ motion falls short with respect to that examination, too, since Plaintiffs have not provided any factual basis whatsoever for concluding that every named Plaintiff is actually entitled to preliminary injunctive relief, either because each has a likelihood of succeeding on the merits of the complaint’s sex-discrimination claim (or, perhaps, some not-yet-pleaded retaliation claim), or because each is imminently likely to be the object of any retaliatory act by the FBI, much less that they would all suffer irreparable harm due to any such retaliation in the absence of a preliminary injunction. Instead, Plaintiffs appear to request injunctive relief by association: their request for a generic FBI-wide anti-retaliation order is based on the alleged actions of a handful of supervisors who are located in the Phoenix Division and who have allegedly taken steps to retaliate against one Plaintiff (Wesley) and one witness (Martinez). (See Pls.’ PI Mot. at 10–19; 20–22.) There are no allegations in the complaint, or the PI motion, that the FBI has engaged in a pattern or practice of retaliatory conduct on a nationwide scale. Yet, Plaintiffs argue that broad injunctive relief is needed to, essentially, send a message that Plaintiffs and witnesses are protected in order to preserve future participants’ willingness to participate in this litigation. (See Pls.’ PI Reply at 25–26 (observing that “the FBI is a relatively small community,” and that “what happens in connection with this litigation—including resolution of this motion—will be seen by class members and witnesses throughout the FBI”).)
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In the absence of any evidentiary support for the speculative suggestion that the FBI will target Plaintiffs and witnesses going forward, this Court cannot find that Plaintiffs have established any of the traditional PI factors. Nor is this Court aware of any authority that supports Plaintiffs’ implicit suggestion that a preliminary injunction can properly issue to address potential conduct of a defendant that is neither established nor imminent, whether to ensure the participation of parties and witnesses or otherwise. To be clear: if these Plaintiffs have allegations and evidence that the FBI is engaged in a wide-spread practice of retaliating against them (or their potential witnesses) for filing this lawsuit or participating in the instant action, then they will be granted leave to make those legal claims as part of the instant action, and if Plaintiffs can also demonstrate that they have a likelihood of success on the merits of such retaliation claims and that they will face irreparable injury unless the FBI is enjoined from engaging in this unlawful behavior while the retaliation claims are being litigated, then this Court would have both subject-matter jurisdiction and ample justification to issue a preliminary injunction. What Plaintiffs cannot do is file a legal action alleging only that the FBI has previously engaged in unlawful sex-based discrimination, and then parlay that claim into a request for a preliminary injunction that prevents potential (but not actually alleged) retaliatory acts by Defendant, where those acts do not relate to the same conduct that gave rise to Plaintiffs’ underlying claims, and when Plaintiffs have not yet demonstrated either that they have a likelihood of success with respect to any of their claims or that they will suffer irreparable injury in the absence of the requested injunctive relief.
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III. To the extent that Plaintiffs have now made specific allegations in the complaint concerning alleged retaliatory conduct by supervisors in the FBI’s Phoenix Division against Wesley (see, e.g., 3d Am. Compl. ¶¶ 129–34), they have cleared the jurisdictional bar to this Court’s consideration of Plaintiffs’ motion for a preliminary injunction with respect to that particular claim. However, in order to be entitled to preliminary injunctive relief, Plaintiffs must also show, inter alia, that Wesley is substantially likely to succeed on the merits of her retaliation claim, and that she will suffer irreparable injury in the absence of preliminary relief. See, e.g., Food & Water Watch, Inc. v. Vilsack, 79 F. Supp. 3d 174, 185 (D.D.C.), aff’d, 808 F.3d 905 (D.C. Cir. 2015); see also Sampson v. Murray, 415 U.S. 61, 88 (1974) (explaining that “the basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies”). Upon consideration of the parties’ arguments and evidence, the Court finds that Wesley has not satisfied her burden on either of these fronts for at least three reasons. First of all, Wesley has not provided sufficient evidence in connection with the motion (such as live witness testimony) to enable this Court to make credibility determinations as is necessary to resolve the myriad disputes of fact that abound with respect to her retaliation claim. (Compare Decl. of Mary Martinez, Ex. 3 to Pls.’ PI Mem., ECF No. 24-5, ¶ 5 (stating that an FBI supervisor, Andrew Braun, told Martinez that Wesley “needs to go” because she has engaged in EEO activity) with Decl. of Andrew J. Braun, Ex. 2 to Def.’s PI Opp’n, ECF No. 27-3, ¶ 8 (denying that he made any such statement).) To demonstrate a substantial likelihood of success on the merits
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of one’s claim in support of preliminary injunction, evidence that is sufficient to permit resolution of material disputes of fact is required. Cf. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (explaining that a movant seeking a preliminary injunction must provide “substantial proof” that clearly shows her entitlement to relief); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (3d ed. 2015) (“Evidence that goes beyond the unverified allegations of the pleadings and motion papers must be presented to support or oppose a motion for a preliminary injunction.”) (collecting cases). And the reverse is also true—"the Court cannot conclude that the plaintiff has demonstrated a substantial likelihood of success on the merits” where there are unresolved “disputes regarding the inferences that must be drawn from the facts in the record[.]” Davis v. Billington, 76 F. Supp. 3d 59, 64 (D.D.C. 2014) (internal alterations, quotation marks, and citation omitted); see also Navistar, Inc. v. EPA, No. 11-cv-449, 2011 WL 3743732 at *3 (D.D.C. Aug. 25, 2011) (explaining that, without “a substantial indication of likely success on the merits, there [is] no justification for the court’s intrusion into the ordinary processes of administration and judicial review” (internal quotation marks and citation omitted)).
Second, Wesley has not established that she is at risk of imminent, irreparable injury in the absence of injunctive relief. “It is well-settled that preliminary injunctive relief is not usually available in employment cases” because “it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.’” Moore v. Summers, 113 F. Supp. 2d 5, 24 (D.D.C. 2000) (quoting Sampson, 415 U.S. at 90). Thus, Plaintiffs need to explain why Wesley would not have all of the traditional remedies for unlawful adverse action in the employment context—
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including back pay, damages, reinstatement—available to her if she ultimately succeeds on her retaliation claim. See, e.g., Sataki v. Broad. Bd. of Governors, 733 F. Supp. 2d 22, 47 (D.D.C. 2010) (explaining that “‘given the court’s equitable powers to remedy loss in employment through, for example, back pay and time in service credit, cases are legion holding that loss of employment does not constitute irreparable injury’” (quoting Farris v. Rice, 453 F. Supp. 2d 76, 79 (D.D.C. 2006) (alteration omitted))); Nichols v. Agency for Int’l Dev., 18 F. Supp. 2d 1, 5 (D.D.C. 1998) (finding that a Title VII plaintiff had not established irreparable injury from the imminent loss of his job because, if successful in his suit, he would “be able to recover fully his backpay and [a] full complement of compensatory relief”). This Court does acknowledge what other courts have recognized; that, in certain limited circumstances, the loss of a unique position can satisfy the irreparable harm requirement. See, e.g., Saunders v. George Washington Univ., 768 F. Supp. 843, 845 (D.D.C. 1991). But, again, Plaintiffs would have to make a persuasive argument that Wesley’s circumstances fall within this narrow exception, which they simply have not done. Indeed, the specific injunctive relief that Wesley seeks relates to her working conditions, rather than the imminent loss of her unique or specialized job. See Katz v. Georgetown Univ., No. 00-cv-2412, 2000 WL 33539394 at *5–6 (D.D.C. Nov. 6, 2000), aff’d, 246 F.3d 685 (D.C. Cir. 2001).3
3 Specifically, Plaintiffs have asked the Court to order the following injunctive relief with respect to Wesley:
Defendant is specifically directed to permit Plaintiff Erika Wesley to continue to work the alternative work schedule (6 am to 2:45 pm) that she had previously been permitted to work; to permit Ms. Wesley to have access to a laptop and the opportunity to telework; to permit Ms. Wesley to keep her ergonomic work station; and to assign Ms. Wesley an Intelligence Analyst position consistent with her GS-13 status which she can fulfill consistent with her requested reasonable accommodations (and which Defendant will discuss with Ms. Wesley consistent with the interactive process governing
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Moreover, Plaintiffs have not presented any evidence to support Wesley’s speculative contention that, if she leaves her position based on the FBI’s alleged failure to accommodate her disability, she would be precluded from using her intelligence analyst skills elsewhere, such as at a different federal agency. (See Decl. of Erika Wesley, Ex. 1 to Pls.’ PI Mot., ECF No. 24-3, ¶ 74.)
Third, and finally, the Court is persuaded by the FBI’s argument that, in any event, the relief that Wesley requests cannot be ordered at this moment in time, because Wesley “is currently on suspended employment status” due to the present suspension of her security clearance, which is a prerequisite to working at the FBI. (See Def.’s Status Report, ECF No. 36, at 1.) To this Court’s knowledge, the agency’s investigation into Wesley’s clearance status is still ongoing, and the law in this Circuit is clear that judicial review of the merits of clearance decisions is absolutely barred. See Rattigan v. Holder, 689 F.3d 764, 768 (D.C. Cir. 2012).4 Therefore, at least for now—as Plaintiffs appear to have conceded (see Hr’g Tr. at 73:10–15)—this Court cannot order the FBI to reinstate Wesley’s clearance and award her the interim relief that she seeks regarding her working conditions.
IV. In conclusion, it is clear to this Court that it lacks jurisdiction to enter an order preliminarily enjoining the FBI from generally retaliating against the Plaintiffs and
accommodations), and under a different supervisor, who has not participated in the retaliation she has experienced[.] (Proposed Order at 1–2.) 4 At most, Wesley might be able to bring a claim for damages if the referral was “knowingly false” and made in retaliation for her protected activity. Rattigan, 689 F.3d at 770.
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witnesses in this case, and the Court further finds that Wesley has not established that she is entitled to preliminary injunctive relief with respect to the retaliation claim that appears in the Plaintiffs’ amended pleadings. Therefore, as set forth in the separate Order that accompanies this Memorandum Opinion, Plaintiffs’ [24] Motion for Preliminary Injunction for Protection from Retaliation is DENIED.

DATE: July 23, 2020

Ketanji Brown Jackson
KETANJI BROWN JACKSON United States District Judge

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