UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

ANDREW J. BRIGIDA,

Plaintiff,

v.

ELAINE L. CHAO, Secretary of 

Transportation,

Defendant.

No. 16-cv-2227 (DLF)

MEMORANDUM OPINION AND ORDER

In his latest proposed complaint, plaintiff Andrew Brigida asserts two employment 

discrimination claims against the Federal Aviation Administration (FAA) under Title VII of the 

Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Title VII). Brigida alleges that the FAA “purged” 

its “merit-based hiring preference for Qualified Applicants for Air Traffic Controllers,” Proposed 

Fourth Am. Compl. (“Compl.”) ¶¶ 204, Dkt. 99-1, and (2) “implemented” a “Biographical 

Questionnaire into the 2014 [Air Traffic Controller] hiring process,” id. ¶ 207, both “with the 

intent and purpose of benefitting African American Air Traffic Controller applicants and 

hindering the Class members,” id. ¶¶ 204, 207. Brigida also seeks to certify a class, pursuant to 

Rules 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure. Id. ¶ 182. Before the Court is 

Brigida’s Motion to Amend the Complaint, Dkt. 99, and the FAA’s motion to strike the class 

claims in the amended complaint, Dkt. 106. For the reasons that follow, the Court will grant 

Brigida’s motion to amend in part and deny it in part, and it will deny the FAA’s motion to strike 

the class claims.

Rule 15 provides that “a party may amend its pleading only with . . . the court's leave,” 
2

but that “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). 

The FAA opposes Brigida’s motion to amend and moves to strike his proposed class claims on 

the grounds that the claims would be futile. Dkt. 105. The Court will address each in turn. 

I. ANALYSIS

A. Hiring Preference Claim

The FAA argues that Brigida’s hiring preference claim is futile because it does not 

plausibly allege (1) an adverse employment action or (2) intentional discrimination against nonAfrican-Americans. 

At least at this stage, Brigida has alleged sufficient facts to satisfy the intentional 

discrimination element of his hiring preference claim. The complaint alleges that the CTI 

program did not present barriers to minority participation in the workforce and that the 

“percentage of African American enrollees [in the CTI program in 2012 and 2013] exceeded the 

percentage of African Americans in the relevant civilian labor workforce pool in the same 

years.” Compl. ¶ 134. Nonetheless, the FAA manipulated data in various ways, see id. ¶¶ 136, 

79, 82, “abruptly abandoned its well validated merit-based employment screening system,” and 

“arbitrarily purged its inventory of prequalified [Air Traffic Controller] applicants,” caving to 

“activists” and “non-agency consultants” who favored a “race-motivated hiring scheme,” without 

a remedial justification for doing so, id. at 2. Together, these concrete, plausible allegations 

suggest that there is “something ‘fishy’ about the facts of the case at hand that raises an inference 

of discrimination.” Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). 

It is less clear, however, whether the FAA’s alleged changes to its hiring process 

constituted an “adverse employment action” under Title VII. In the abstract, the FAA’s actions 

could give rise to a failure-to-hire claim of the sort blessed by the Supreme Court in Ricci v. 
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DeStefano, which held that an employer violates Title VII when it refuses to accept the outcome 

of a race-neutral hiring process solely because of the racial makeup of the successful applicants. 

557 U.S. 557, 579–80 (2009). But the FAA is correct that Brigida’s “adverse employment 

action” theory extends beyond the failure-to-hire claim previously recognized in Ricci, see Def.’s 

Opp’n at 22. Brigida’s Title VII claim is premised on his status as an “applicant” to the FAA, 

see 42 U.S.C. § 2000e-16(a), but in contrast to the Ricci plaintiffs, Brigida was not yet an 

“applicant” at the time the FAA allegedly changed its process. The Ricci plaintiffs had already 

applied to the positions in question, and absent the employer’s alleged discrimination, they 

would have indisputably been hired given their high test scores. See Ricci, 557 U.S. at 585. 

Because this issue would benefit from further briefing, the Court will grant Brigida leave to 

amend, and the Court will revisit this issue should the FAA move to dismiss the complaint on 

this ground.

B. Biographical Assessment Claim

With respect to the biographical assessment, Brigida alleges both disparate treatment and 

disparate impact claims, and the FAA contests both on futility grounds.

Like his hiring preference claim, Brigida’s biographical assessment claim includes 

plausible allegations that raise an inference of discrimination. Harding, 9 F.3d at 153. In 

addition to the allegations stated above, the complaint alleges that the biographical assessment 

was carefully designed to advantage African American applicants over non-African Americans. 

See Compl. ¶¶ 120–21. These allegations satisfy the intentional discrimination element.

Brigida also administratively exhausted his disparate treatment claim. Brigida’s EEO 

complaint, which is twenty-four pages long and contains over 100 paragraphs of allegations, 

asserts generally that “the FAA changed the assessment and post assessment processes resulting 
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in disparate treatment on the basis of race.” EEO Compl. ¶ 3, Dkt. 105-37. And it refers 

specifically to the FAA’s act of “making students who had already passed the prior validated 

assessment process ‘pass’ a highly suspect Biographical Analysis . . . questionnaire.” Id. ¶ 73. 

The EEO complaint purports to “bring claims of discrimination regarding appointment, hire, 

evaluation/appraisal, examination/test/assessment, non-selection and terms/conditions of 

employment based upon race.” Id. ¶ 93 (emphasis added). Brigida’s claim that the biographical 

assessment was devised and implemented for unlawful discriminatory purposes appears 

“reasonably related to the allegations of” the EEO charge or, at a minimum, “ar[ose] from the 

administrative investigation that [could] reasonably be expected to follow the charge.” Park v. 

Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). 

Brigida failed, however, to administratively exhaust his disparate impact claim. 

Disparate treatment allegations contained in an administrative complaint do not exhaust the 

separate “cause[] of action” of a disparate impact claim. EEOC v. Abercrombie & Fitch Stores, 

Inc., 135 S. Ct. 2028, 2032 (2015); see also Bartlette v. Hyatt Regency, 208 F. Supp. 3d 311, 324 

(D.D.C. 2016); Hopkins v. Whipple, 630 F. Supp. 2d 33, 40–41 (D.D.C. 2009). Brigida’s EEO 

complaint repeatedly and exclusively references “disparate treatment” or “intentional 

discrimination,” rather than “disparate impact.” See, e.g., EEO Compl. ¶¶ 2, 3, 60, 76, 92. And 

Brigida’s statement that he became aware of the discrimination “on or about February 9, 2014,” 

id. at 2, weighs against his exhaustion argument given that the biographical assessment had not 

yet been administered. Because Brigida did not exhaust his disparate impact claim, he may not 

include it in his amended complaint.
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C. Rule 23 Requirements

Finally, the FAA argues that Brigida’s proposed class1claims are “futile because a 

subsequent motion to certify the proposed class[] would be denied.” Def.’s Opp’n at 33. 

The Court will hold Brigida to his representation that the putative class will only include 

“recent graduates,” Pl’s Reply at 19 n.10, and it agrees with the FAA that certain individuals—

those with test scores that expired prior to December 2013 and those who lacked CTI 

recommendations and graduated well before December 2013—likely would not fall within the 

class of individuals harmed by the allegedly discriminatory policy change. But the Court leaves 

open the possibility that Brigida may be able to identify, though limited pre-certification 

discovery, recent graduates who lacked CTI recommendations because of the FAA’s change in 

hiring announcement or individuals who were scheduled to take the AT-SAT examination in 

December 2013 (or later) but failed to do so because of the FAA’s announcement. Accordingly, 

the Court will not deny Brigida leave to amend the putative class definition on this ground.2 

The Court disagrees with the FAA that the putative class fails to meet Federal Rule of 

 

1 Consistent with Title VII’s text, the Court rejected the plaintiffs’ previous attempts to include 

non-applicants in the putative class. See Tr. of Mot. Hearing, Sept. 13, 2019, Dkt. 86; Order of 

Apr. 5, 2020, Dkt. 98. The proposed class now consists of “approximately 2,500 to 3,000 nonAfrican American CTI students who: (1) by February 10, 2014: (a) graduated from a CTI 

program at one of the 36 FAA-partnered CTI Institutions and (b) passed the AT-SAT, (2) 

applied to be an [Air Traffic Controller] trainee through the 2014 all sources vacancy 

announcement but failed the Biographical Questionnaire that was incorporated into the 2014 

[Air Traffic Controller] hiring process and [were] therefore not hired; and (3) have never been 

offered employment as an FAA [Air Traffic Controller].” Compl. ¶ 182. The putative class 

also excludes “any CTI graduates who were not U.S. citizens as of February 10, 2014, or by 

February 21, 2014 had reached 31 years of age (or 35 years of age if they had had 52 

consecutive weeks of prior air traffic control experience).” Id. 

2 The Court will, however, instruct Brigida to incorporate an element of his previous putative class

definition which excluded “CTI graduates whose academic records as of January 27, 2014 

explicitly stated that they were ineligible to receive a letter of recommendation from their CTI 

school.” See Dkt. 87-1 ¶ 100.
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Civil Procedure 23’s commonality and typicality requirements because it “includes both CTI 

graduates whose AT-SAT scores ranked them well-qualified and those who passed the AT-SAT 

with a lower score and were far less likely to be selected under the prior hiring process.” Def.’s 

Opp’n at 35. Accepting Brigida’s allegations as true, all members of the putative class—from 

the most to the least well-qualified CTI graduates—suffered the legal injury of being 

discriminated against on the basis of their race when the FAA abolished a preferential program in

which the graduates had invested time and resources and on which they reasonably relied. While 

some potential remedies—for instance, back pay and front pay—might only apply to certain 

class members, other potential remedies could apply to every member of the class. As the Court 

previously recognized, Congress’s 2016 legislation “does not bar Brigida from receiving some 

type of hiring preference within his pool,” Mem. Op. and Order at 8, Dkt. 50, and that 

preferential consideration could be afforded to all members of the putative class (even though not 

all would be hired as a result). See Compl. at 43 (seeking an injunction eradicating the effects of 

the FAA’s allegedly unlawful hiring practice, including instatement preferences and eligibility 

extensions). Because the difference in class members’ qualifications does not necessarily 

destroy commonality and typicality, the Court will not strike the proposed class claims. 

Finally, Brigida must choose between retaining Suzanne Rebich and Matthew DouglasCook as named plaintiffs or discarding them as class representatives.3

 Rule 23 requires that 

putative class representatives be parties to the litigation in which they seek to represent a class. 

See Fed. R. Civ. P. 23(a)(4) (requiring that “the representative parties will fairly and adequately 

 

3 Brigida properly seeks to remove former named plaintiff Pollyanna Wang, who accepted an Air 

Traffic Controller position with the FAA and therefore falls outside the putative class definition. 

See Compl. ¶ 182 (limiting the putative class to individuals who “have never been offered 

employment as an FAA [Air Traffic Controller]”). 
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protect the interests of the class” (emphasis added)); accord Wal-Mart Stores v. Dukes, 564 U.S. 

338, 349 (2011) (“Rule 23(a) ensures that the named plaintiffs are appropriate representatives of 

the class whose claims they wish to litigate.” (emphasis added)). Individuals are either both

named plaintiffs and class representatives, or they are neither. 

For the foregoing reasons, it is 

ORDERED that the plaintiff’s Motion to Amend the Complaint, Dkt. 99, is GRANTED 

IN PART and DENIED IN PART. The plaintiff is directed to file, on or before October 27, 

2020, a modified Fourth Amended and Supplemental Class Action Complaint that is consistent 

with this Order.4 It is further

ORDERED that the defendant’s Motion to Strike Class Claims, Dkt. 106, is 

DENIED. And it is further

ORDERED that the parties shall submit a joint status report, on or before October 23, 

2020, proposing a schedule for further proceedings in this case.

________________________

DABNEY L. FRIEDRICH

October 12, 2020 United States District Judge

 

4 The Court notes that Brigida suggests that he intends to propose several more amendments to the 

complaint—for instance, to establish a separate class of African Americans, Compl. ¶ 182 n.8, as 

well as a class including former plaintiffs like Lucas Johnson and Pollyanna Wang “who were later 

offered an [Air Traffic Controller] position and therefore suffered the lesser harm of a delay in 

hiring,” id. ¶ 182 n.9. This is already Brigida’s second attempt to amend since the Court laid out 

its expectations in the September 13, 2019 hearing on the motion for class certification. Given the 

history of this litigation, further attempts to amend the complaint will be disfavored.