United States District Court, M.D. Pennsylvania
Sylvia H. Rambo Judge
In this employment discrimination action, the United States Attorney General sued the Commonwealth of Pennsylvania, alleging that the Commonwealth of Pennsylvania has engaged in a “pattern or practice” of unlawful discrimination against females applying for employment as an entry level trooper with the Pennsylvania State Police, resulting in disparate impact in violation of Title VII of the Civil Rights Act of 1964. Presently before the court is the Commonwealth of Pennsylvania’s motion to dismiss, disposition of which requires the court to determine whether Section 707(a) of Title VII confers authority upon the United States to assert a disparate impact claim against a state. For the following reasons, the court determines that such a disparate impact claim is not foreclosed by statute and concludes that the United States has made a sufficient showing that this court has subject matter jurisdiction.
The United States initiated this action by filing a complaint on July 29, 2014, asserting that the Commonwealth of Pennsylvania (“Commonwealth”) and the Pennsylvania State Police (“PSP”) (collectively, “Defendants”) have violated Title VII of the Civil Rights Act 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”). (Doc. 1.) More specifically, the United States alleges that Defendants’ use of physical fitness tests to screen and select applicants for entry-level PSP trooper positions has had an unlawful disparate impact against female applicants, who have passed the physical fitness tests-and thus been hired-at significantly lower rates than male applicants. (Id. at ¶¶ 20-21, 23, 25, 27(b).)
According to the complaint,  the PSP administered two versions of the physical fitness test between 2003 and 2012. The first version, which was administered between 2003 and 2008 (“2003 PFT”), required applicants to pass five events to continue in the selection process: (1) a 300-meter run; (2) sit-ups; (3) pushups; (4) a vertical jump; and (5) a 1.5-mile run. (Id. at ¶¶ 11-12.) Approximately 94 percent of male applicants and 71 percent of female applicants passed the 2003 PFT. (Id. at ¶ 13.) The PSP revised the test in 2009 (“2009 PFT), and during the 2009 to 2012 application periods in which the 2009 PFT was administered, approximately 98 percent of male applicants and 72 percent of female applicants passed the physical fitness test. (Id. at ¶¶ 16-17.) The United States asserts that the disparity between male and female pass rates on both the 2003 and 2009 PFTs is statistically significant because the female pass rate was less than 80 percent of the male pass rate. (Id. at ¶¶ 14-15, 18-19.) The United States avers that, if female applicants had passed the 2003 and 2009 PFTs at the same rate as male applicants, approximately 119 additional women would have been available for further consideration for the entry-level trooper position, resulting in approximately 45 additional women being hired. (Id. at ¶ 21.) The PSP continues to use the 2009 PFT, or a substantially similar version, in its screening and selection process for entry-level troopers. (Id. at ¶ 22.)
Defendants have moved to dismiss the United States’ complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 26.) Primarily, Defendants urge the court to dismiss this case under Rule 12(b)(1) for lack of subject matter jurisdiction, arguing that Title VII’s Section 707(a), 42 U.S.C. § 2000e-6(a), pursuant to which the United States filed this suit, only confers authority upon the United States to bring claims for disparate treatment and, therefore, the court lacks subject matter jurisdiction over the instant claim for disparate impact. In the alternative, Defendants argue that the complaint should be dismissed under Rule 12(b)(6) for failure to state a claim, citing insufficient disparities between the male and female PFT pass rates.
The United States filed an opposition to Defendants’ motion on December 22, 2014. (Doc. 32.) In its opposition, the United States contends that Defendants’ argument regarding the United States’ purported lack of authority to bring disparate impact claims rests on an erroneous interpretation of Title VII, as evidenced by both the statute when read as a whole and case law interpreting Section 707(a). In response to Defendants’ alternative argument that the United States has presented insufficient disparities between male and female PFT pass rates, the United States contends that Defendants’ position fails to account for the case’s current posture and the United States’ ultimate burden on that issue.
In a reply filed on January 19, 2015, Defendants assert that dismissal is further warranted due to the inherent conflict between the Commonwealth’s sovereignty and Section 707(a). (Doc. 33.) In support thereof, Defendants argue that the United States has sued a constituent sovereign in a manner that implicates the police power reserved to the Commonwealth and that the court, therefore, must not “blithely perpetuate an expansion of federal authority that is not justified by the controlling statutory language.” (Doc. 33 at pp. 2-4 of 17.) In a sur-reply filed on January 26, 2015,  the United States contends that there exists no authority for applying a heightened scrutiny standard to a Title VII case brought against a state police employer. (Doc. 35-1.)
II. Legal Standard
Defendants’ motion seeks dismissal of the United States’ claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. As such, the court will set forth the standards under both rules.
A. Motion to Dismiss-Rule 12(b)(1) Standard
Defendants seek dismissal of the complaint primarily on the basis that the court lacks subject matter jurisdiction over the United States’ disparate impact claim. See Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited jurisdiction and thus are permitted to adjudicate cases and controversies only as allowed under Article III of the United States Constitution. U.S. CONST. art. III, § 2. A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the jurisdiction of the court to address the merits of the plaintiff’s suit. Fed.R.Civ.P. 12(b)(1). When considering a challenge to the court’s jurisdiction pursuant to Rule 12(b)(1), no presumption of truthfulness attaches to the plaintiff’s allegations, see Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977), and the court may go beyond the four corners of the complaint and make factual findings which are decisive to the issue, relying on evidence such as affidavits, depositions, and other testimony, Empl’rs Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990). The plaintiff ultimately bears the burden of persuading the court that it has jurisdiction. Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
B. Motion to Dismiss-Rule 12(b)(6) Standard
Defendants also seek dismissal of the complaint on the basis that the United States has failed to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8 requires that a complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must therefore “accept all factual allegations as true, construe the complaint in the light most favorable ...