Fifth Circuit Upholds Termination of Texas Captain

The Fifth Circuit Court of Appeals has ruled that a fire department’s use of the Navy’s Physical Fitness Standard did not discriminate against a Texas fire captain. Rachael Crivelli filed suit against Montgomery County Emergency Services District No. 7 after she was fired for “repeatedly failing the new physical fitness assessment.”

Captain Crivelli claimed her termination was retaliation for complaining about “a former fire chief’s sexist comments,” and that the new physical test discriminated on the basis of gender. The Fifth Circuit made short work of those arguments, and in the process provided us with a good explanation of the procedural difference between disparate treatment and disparate impact cases:

  • Crivelli was a firefighter at MCESD7.
  • In 2017, MCESD7 hired Howard Rinewalt as its Chief of Firefighting.
  • Chief Rinewalt quickly promoted Crivelli to Captain—the first time a woman had attained that rank in the history of Montgomery County.
  • Shortly after taking office, Chief Rinewalt changed MCESD7’s physical fitness assessment.
  • Before, the assessment had involved activities such as climbing ladders, carrying dummies, and dragging hoses.
  • Chief Rinewalt redesigned the assessment to closely mirror the United States Navy’s Physical Fitness Standard.
  • Firefighters were required to perform three exercises: sit-ups, push-ups, and either a timed run or a timed rowing exercise.
  • The new assessment is age- and gender-adjusted.
  • For example, 31- year-old Crivelli was required to do 13 push-ups; a man of her age would have been expected to do 35.
  • The gravamen of Crivelli’s complaint is that she was terminated for repeatedly failing the new physical fitness assessment.
  • Four other individuals never managed to pass the test. All were men, and all were terminated or resigned.
  • Every woman but Crivelli passed the test on their first try, for a pass rate of 80%; the pass rate for men was 77%.
  • Title VII of the Civil Rights Act of 1964 makes it unlawful to “discharge any individual … because of such individual’s … sex.”
  • Such discrimination “can be established through either direct or circumstantial evidence.”
  • Where, as here, the plaintiff relies on circumstantial evidence, courts apply the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
  • First, the plaintiff must make a prima facie case of discrimination.
  • Then the burden shifts “to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
  • If the employer does so, the plaintiff must prove that the reason was pretext for discrimination.
  • To make a prima facie case of discrimination, an employee must demonstrate that she (1) is a member of a protected class; (2) was qualified for the position at issue; (3) suffered an adverse employment action; and (4) others similarly situated but outside the protected class were treated more favorably in nearly identical circumstances.
  • Because she failed MCESD7’s physical fitness assessment, Crivelli was not qualified for the position at issue.
  • [Q]ualifications are an employer’s prerogative.
  • MCESD7 was free to establish new physical assessment standards and require its employees meet those standards.
  • Crivelli argues that the new physical fitness assessment was not a “business necessity,” and that the old assessment more closely measured the physical capabilities necessary in her line of work.
  • But this argument confuses the standard for disparate-treatment claims, like the one brought here, with the standard for disparate-impact claims.
  • In disparate-treatment cases, the plaintiff bears the burden of making a prima facie case of discrimination, which includes showing that she has the requisite qualifications.
  • In disparate impact cases, the plaintiff must instead show a statistical disparity caused by some employment practice. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 658, 109 S. Ct. 2115, 2125 (1989).
  • Once a disparity is shown, the employer “carries the burden of producing evidence of a business justification for his employment practice.”
  • Crivelli has not brought a disparate- impact claim, and has not shown a statistical disparity that would give rise to such a claim.
  • This court thus has no grounds to indulge in judicial second- guessing of MCESD7’s business decisions.
  • For the foregoing reasons, we find no reversible error of law or fact and affirm essentially for the reasons stated in the comprehensive order of the district court. The judgment of the district court is AFFIRMED.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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