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DAVIS v. MEESE

July 11, 1988

JOEL R. DAVIS
v.
EDWIN MEESE, III, et al.



The opinion of the court was delivered by: VANARTSDALEN

 DONALD W. VanARTSDALEN, SENIOR UNITED STATES DISTRICT JUDGE.

 The issue in this difficult, but noncomplex, litigation is whether the Federal Bureau of Investigation (FBI) may preclude all insulin-dependent persons who have diabetes from being employed by the FBI in the job categories of special agent and investigative specialist. This depends upon whether such preclusion violates Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. §§ 791-796h (1985 & Supp. 1988). Section 504 prohibits federal executive agencies from discriminating against handicapped persons solely because of their handicaps. *fn1" I conclude from the facts established after a full trial on the merits that the FBI's policy of excluding insulin-dependent diabetics from applying for the job classifications of special agent and investigative specialist does not violate the Rehabilitation Act and does not violate the due process clause of the fifth amendment. Consequently, judgment will be entered in favor of defendants and against plaintiff.

 FINDINGS OF FACT

 I. Procedural Facts

 1. Plaintiff, an insulin-dependent diabetic, filed the complaint against defendants seeking class certification on behalf of all diabetics who have been or will be denied employment as special agents or investigative specialists with the FBI because of their diabetes.

 2. No motion for class certification was ever filed. Plaintiff's counsel, representing Joel B. Davis individually, orally advised the court on August 27, 1987, that he did not intend to seek class certification. By memorandum and order dated September 16, 1987, intervention by Timothy A. Cramer as an individual party plaintiff was denied. *fn2" In the same order, class certification was denied.

 3. Although no formal written order was entered on the cross-motions for summary judgment, I ruled from the bench immediately prior to trial that "it would appear to me quite obvious that there are many facts that are in dispute. The [joint] pretrial order itself sets forth many disputed facts some of which appear to me to be material, in addition to which this case is listed for trial." The case thereupon proceeded to trial on the merits. (Notes of Testimony at 1.2, March 21, 1988).

 II. Mutually Agreed Facts

 (Taken verbatim from the Joint Pretrial Order)

 4. Plaintiff Joel R. Davis has insulin-dependent diabetes. Mr. Davis has successfully completed his academic degree at the baccalaureate level in business. In 1980, he graduated from Philadelphia Textile College with a bachelor of science degree in business administration.

 5. Joel R. Davis was hired by the FBI in 1983 as a clerk. He was subsequently promoted to the position of accounting technician.

 6. In the Spring of 1985, Mr. Davis applied for the positions of investigative specialist and special agent. His applications were rejected because of his diabetes.

 7. Mr. Davis accepted the FBI's invitation to apply for the investigative specialist training program. Such invitations are extended to those FBI employees who meet the threshold education requirements and have sufficient employment experience with the FBI. The individuals responsible for issuing such invitations were unaware that Mr. Davis had insulin-dependent diabetes when they invited him to apply. Additionally, Mr. Davis applied to the FBI for employment as a special agent. Mr. Davis meets all of the FBI's threshold requirements for submitting an application for these positions other than the fact that he has insulin-dependent diabetes.

 8. Mr. Davis did not undergo the full application procedure for either the special agent or investigative specialist positions.

 9. Defendant Edwin Meese, III, is the Attorney General of the United States, and defendant William Sessions is the Director of the FBI. They are each responsible for the employment policies and practices of the FBI and the execution of those policies.

 10. The FBI is responsible for investigating violations of over 200 federal criminal laws.

 11. The majority of the FBI's work is devoted to investigating federal criminal violations, including in the areas of organized crime, narcotics, white collar crime and terrorism, and conducting foreign counterintelligence.

 12. The FBI employs approximately 9,300 special agents and 13,000 support personnel.

 13. The FBI is composed of 59 field divisions and FBI Headquarters. Each field division is organized and operated along similar lines. Field division personnel include one special agent in charge, one or more assistant special agents in charge, one or more squad supervisors, and special agent personnel of varying numbers, depending on the size of the field division, and investigative specialists. The field divisions are located in various cities throughout the United States and its territories, and their location generally corresponds to the geographic distribution of federal judicial districts. Field divisions range in size from over 1,000 special agents in the New York Field Division to under twenty special agents. The Philadelphia Field Division, with about 300 special agents, is the fifth largest in the nation, behind New York, Washington, Los Angeles, and Chicago.

 14. FBI Headquarters is composed of ten divisions and the Office of Congressional and Public Affairs. The ten divisions consist of the Identification, Training (Quantico), Administrative Services, Records Management, Intelligence, Criminal Investigative, Laboratory, Technical Services, Legal Counsel, and Inspection Divisions. Generally, each division is composed of sections and each section is composed of one or more units. Not all divisions have sections, however, and not all sections are composed of units. The substructure of the organizational components is determined by the size and functions of the division.

 16. Special agent personnel are stationed throughout the fifty-nine field divisions and FBIHQ. Investigative specialists are assigned to certain field divisions.

 17. The investigative responsibilities of the field divisions consist of: (1) criminal investigations, (2) foreign counterintelligence investigations, (3) applicant background investigations, and (4) administrative matters. Each field division, regardless of its geographic location and personnel complement, is composed of squads, the basic operational unit. The number of squads per field division varies. Squads are managed by special agent supervisors staffed by varying numbers of special agent personnel, and supported by the appropriate number of non-special agent, support personnel. Squads are assigned specific investigative responsibilities (e.g., criminal, foreign counterintelligence, applicant background and/or administrative). Special agent personnel are responsible for the management and conduct of such investigative efforts. Support personnel provide the necessary logistical and technical assistance.

 18. The position of investigative specialist, special support group was created during the 1970's to provide technical and operational assistance to special agents. The job of the investigative specialist consists exclusively of surveillance in the foreign counterintelligence area.

 19. The interview process for special agent applicants consists of a three-member panel of trained interviewers who are themselves special agents with varied investigative experience and who generally have a minimum of three years' service as a special agent. The interview is highly structured and is targeted to elicit behavioral responses to enable the interviewers to assess the applicant in eight dimensions that are considered job-related. These dimensions are: initial impact, oral communication, current events, resourcefulness, range of interest, interest and motivation to become an FBI agent, accomplishments, and overall impression. A maximum of 55 points is attainable on the interview portion of the job application procedure, with a minimum qualifying score being required for further consideration.

 20. There are five programs under which an applicant can apply to be a special agent. These programs are Law, Accounting, Language, Engineering/Science and Diversified. An applicant applying under the Law program must be a graduate of a state-accredited law school with at least two years of undergraduate work at an accredited college or university. All other programs require a four-year college degree from an accredited school, as well as specialized education, ability, and/or work experience (3 years) appropriate to the program. In addition to the five entrance programs, there are two more selection categories -- female and minority -- reflective of the FBI's affirmative action needs. To be included in either of these categories, an applicant must first meet the threshold requirements for one or more of the five entrance programs.

 21. A basic concept of the current FBI applicant selection system is that all applicants compete only against the other candidates in their respective selection programs. The selection process consists of three phases -- testing, interview, and background investigation -- in that order. The tests and interview are the initial screening devices and, in order to advance from one stage of processing to the next, an applicant's scores must be competitive with those of other candidates in the same program. Life experiences, accomplishments, and demonstrated motivation, as opposed to test and interview scores, assume major importance in making final appointive decisions regarding those applicants who reach the background investigation phase. The FBI's aim at any given time is to select for appointment the best available candidates from each selection category. During the period May, 1985 to June, 1986, 514 special agents were hired from the following programs: 116 Law; 67 Accounting; 32 Engineering/Science; 33 Language; and 266 under the Diversified Program. Between January, 1985 and November 1987, 28,718 applicants were tested for the special agent position. Of these 1,687 actually entered on duty.

 22. Candidates for special agent positions are eligible to apply and begin their processing when they are within a specified time of meeting all the threshold requirements for the programs under which they intend to apply. Applicants who apply under the Accounting, Language and certain categories of the Engineering/Science Program are initially required to take specialized tests to assess their ability in their field of expertise. Applicants who successfully pass the specialized test in their field can then take the test battery given to all special agent applicants regardless of the programs under which they are applying. This battery, called the Special Agent Entrance Examination (SAEE), is considered predictive of job performance based on the most current information about the abilities and traits required for the special agent position. The SAEE consists of five parts, including a memory test and a reading comprehension test. The five parts make up one test and are graded as such for a total maximum point value of 45. Minimum qualifying scores have been established for each selection category based on the need for specific candidates from that particular program. All applicants who achieve the minimum qualifying score that has been established for their particular entrance program(s) are eligible to move on to the interview phase of the selection system, described above.

 23. The total of the test and interview scores, known as the Percentile Ranking Grade (PRG), is the basis for the final ranking of all special agent candidates, both within their particular programs, and on a general listing that includes all individuals in the system, regardless of program. Selections for further processing are based on the FBI's specialized needs at the time, with those who attain a qualifying PRG being selected.

 24. Those individuals who are chosen for further consideration undergo a complete physical examination to ascertain their physical fitness for duty as a special agent. Those who are found medically acceptable to perform strenuous physical activities are then subjected to a pre-employment physical fitness test to ensure that, if selected for an appointment, they will report for training in proper physical condition. The fitness test is designed to provide an excellent indication of the candidate's body strength, muscle endurance, abdominal muscle endurance, cardiovascular endurance and body fat composition. Individuals who ...


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