OPINION

JOHN A. GIBNEY, JR., District Judge.

In 2014, Dr. Jane D. DiCocco, a 67-year-old female, accepted a job as a psychiatrist for the United States Bureau of Prisons ("BOP"). The BOP required DiCocco, like all employees, to take a physical abilities test ("PAT"). DiCocco failed the PAT. Although BOP regulations allowed her to retake the test within 24 hours, DiCocco declined to do so. The BOP told her that if she did not resign, it would terminate her employment. DiCocco resigned.

DiCocco has sued the U.S. Department of Justice ("DOJ") for gender discrimination under Title VII of the Civil Rights Act of 1964 and for age discrimination under the Age Discrimination in Employment Act ("ADEA"). She alleges that the PAT has a disparate impact on females and employees over the age of 40. The DOJ has moved to dismiss, arguing that (1) sovereign immunity bars the ADEA claim, (2) DiCocco lacks standing to assert her claims, and (3) DiCocco has failed to state a claim as to both the Title VII and the ADEA claims.

Because DiCocco lacks standing to assert her claims, the Court will grant the DOJ's motion and will dismiss this case without prejudice.

I. FACTS ALLEGED IN THE COMPLAINT

In July, 2014, the BOP hired DiCocco as a psychiatrist at the Federal Correctional Complex in Petersburg, Virginia. Although the BOP has a maximum age requirement of 36 years old, it exempts medical officers, such as psychiatrists, from the age requirement.

Notwithstanding the age exception, the BOP requires all new hires—regardless of age, gender, or position—to pass a PAT. The BOP imposes this requirement because "all positions in correctional institutions are hazardous duty law enforcement positions, [so] all employees are responsible for maintaining security in the event of an emergency." (Dk. No. 1, ¶ 12.) The PAT tests "`the five most important physical abilities to correctional work,' which are `dynamic strength,' `gross body equilibrium,' `gross body coordination,' `stamina,' and `explosive strength.'" (Id. ¶ 8.) All employees must complete each test must within a specified time.

Specifically, the PAT requires each employee to (1) drag a 75-pound dummy continuously for 3 minutes for at least 694 feet, (2) climb a ladder to retrieve an object in 7 seconds, (3) complete an obstacle course in 58 seconds, (4) run a quarter mile and handcuff an individual in 2 minutes and 35 seconds, and (5) climb three tours of stairs in 45 seconds while wearing a 20-pound weight belt. "The PAT makes no provision for the physiological differences between males and females, [or] for the physiological differences of older individuals." (Id. ¶ 14.)

An employee must receive an overall passing composite score to pass the PAT. Thus, an employee who falls below average on one or more tests can compensate for the deficiency by scoring above average on the other tests. Each employee need only pass the PAT once, and the BOP does not retest any employee after that employee successfully completes the PAT. If an employee fails the PAT on the first try, BOP guidelines allow that employee to retake the PAT within 24 hours.

The BOP maintains statistics about PAT pass rates. Between 2012 and 2015, 9,999 applicants took the PAT. Of those applicants, 99.59 percent (9,958 applicants) passed the PAT, while 0.41 percent1 (41 applicants) failed it. Males comprised 7,176 of applicants, with a pass rate of 99.26 percent2 (7,123 applicants). Females comprised 2,823 of applicants, with 98.65 percent (2,785 applicants) passing the PAT. Although females comprised 28 percent of the total applicants, approximately 93 percent (38 applicants) of the applicants who failed the PAT were female.

As for age, 8,397 of the applicants were under 40 years old, while 1,602 were over 40. 99.8 percent3 (8,380 applicants) of the under-40 applicants passed the PAT, while 98.5 percent (1,578 applicants) of the over-40 applicants passed the PAT. Although the over-40 applicants comprised 16 percent of the total applicants, they comprised 47 percent4 (24 over-40 applicants) of those who failed the PAT. Those 24 applicants were between the ages of 42 and 67.5

Because DiCocco failed to finish all components of the PAT during her initial test within the prescribed times, she failed the PAT. BOP guidelines allowed her to take the PAT a second time within 24 hours. She declined to do so, "fearing that in her exhausted physical condition, she would be unable [to] complete it in a satisfactory time during the second attempt." (Id. ¶ 15.) After she declined, the BOP informed DiCocco that, "unless she resigned, her employment with BOP would be terminated for failure to pass the PAT within the required times." (Id. ¶ 16.) On April 7, 2015, DiCocco resigned.

DiCocco filed a complaint with the U.S. Equal Employment Opportunity Commission ("EEOC"), alleging disparate treatment and disparate impact based on age and sex. After the EEOC denied her complaint and the DOJ issued a final decision accepting the decision of the EEOC administrative judge, DiCocco filed this lawsuit. She alleges (1) gender discrimination in violation of Title VII; and (2) age discrimination in violation of the ADEA.6 The DOJ has moved to dismiss the action based on sovereign immunity, lack of standing, and failure to state a claim.

II. DISCUSSION7

A court must first decide whether it has subject matter jurisdiction before deciding the merits of the case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1986). A court lacks jurisdiction when sovereign immunity bars a claim. See Kramer v. United States, 843 F.Supp. 1066, 1068 (E.D. Va. 1994). Likewise, a court lacks jurisdiction when a party lacks standing to bring the case. See AtlantiGas Corp. v. Columbia Gas Transmission Corp., 210 F. App'x 244, 247 (4th Cir. 2006). A court may choose the order in which it will decide jurisdictional questions. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999). The Court, therefore, will first address whether DiCocco has standing to assert her claims.

Federal courts have jurisdiction over "cases" and "controversies." U.S. Const., Art. III, § 2. To sue in federal court, a plaintiff must establish Article III standing by showing a "`concrete and particularized' injury that is fairly traceable to the challenged conduct of the defendant and is likely to be redressed by a favorable judicial decision." Ansley v. Warren, 861 F.3d 512, 517 (4th Cir. 2017) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

The DOJ argues that DiCocco has not alleged an adverse employment action caused by the alleged discriminatory practice. Accordingly, the Court will consider whether DiCocco has sufficiently alleged an injury in fact and causation.8

A. Injury in Fact

To allege "an actionable injury" in Title VII and ADEA disparate impact cases, a plaintiff must sufficiently plead that she suffered an adverse employment action. Chaplin v. Du Pont Advance Fiber Sys., 293 F.Supp.2d 622, 626-27 (E.D. Va. 2003); see Young v. Covington & Burling LLP, 740 F.Supp.2d 17, 21 (D.D.C. 2010) ("In the context of Title VII litigation, the constitutional requirement of an injury in fact, is construed as an adverse employment action." (internal quotations and citation omitted)).9 Mere speculation that a certain action could result in reprimand or a job loss "is insufficient to confer standing." Chaplin, 293 F. Supp. 2d at 627; cf. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 402 (2013) ("[R]espondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.").

DiCocco alleges that the BOP forced her to resign after she failed the PAT. "[A]n employee's voluntary resignation does not, as a matter of law, constitute an adverse employment action." High v. R & R Transp., Inc., 242 F.Supp.3d 433, 446 (M.D.N.C. 2017). But an employee's resignation may amount to a constructive discharge in certain circumstances. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 186-87 (4th Cir. 2004).

Constructive discharge has two elements. "First, a plaintiff must show that [her] working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign. Second, a plaintiff must actually resign because of those conditions." Perkins v. Int'l Paper Co., 936 F.3d 196, 211-12 (4th Cir. 2019) (quotations and citations omitted); see also Alba v. Merrill Lynch & Co., 198 F. App'x 288, 294 (4th Cir. 2006). "Constructive discharge claims are held to a high standard, and even truly awful working conditions may not rise to the level of constructive discharge." Ratcliff v. Spencer, No. 1:18-CV-757, 2019 WL 2375131, at *5 (E.D. Va. June 4, 2019). "Dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign." Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). Further, to determine whether an individual involuntarily resigned, courts must consider "the circumstances of the resignation to determine whether the employee was denied the opportunity to make a free choice." Bauer v. Holder, 25 F.Supp.3d 842, 852 (E.D. Va. 2014), vacated sub nom. on other grounds in Bauer v. Lynch, 812 F.3d 340 (4th Cir. 2016).10

Citing to only one allegation in the complaint,11 DiCocco contends that "[t]here is no hint ... that [she] was fired for her declining a second attempt to pass the PAT." (Dk. No. 9, at 12.) But DiCocco also acknowledges that "[t]he BOP guidelines permit a new hire to retake the PAT within 24 hours" and that she "declined." (Dk. No. 1, ¶ 15 (emphasis added).) Only after alleging that she declined to take the PAT a second time does DiCocco allege that the BOP gave her the option between resignation or termination. Thus, DiCocco alleges that she had a third option other than termination or resignation—the chance to take the PAT a second time—leaving DiCocco with "the opportunity to make a free choice."12 Bauer, 25 F. Supp. 3d at 852.

Moreover, while DiCocco says she was tired, it does not follow that she would have failed the PAT on her second try. The majority of older people and women pass the test. Thus, her decision to resign rather than retake the exam and potentially fail a second time "is speculative and, as such, is insufficient to confer standing." Chaplin, 293 F. Supp. 2d at 627.

Accordingly, DiCocco has not alleged that she suffered an adverse employment action, and therefore, has failed to show an injury in fact. Young, 740 F. Supp. 2d at 21 (construing "the constitutional requirement of an injury in fact ... as an adverse employment action").

B. Causation

The DOJ frames much of its argument in terms of causation, positing that DiCocco has not alleged that the PAT caused her injury. See Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 577 (6th Cir. 2004) ("[A]n individual plaintiff arguing a disparate impact theory must show that the challenged policy directly disadvantaged [her] in some fashion."). In light of the Court's ruling that DiCocco has not suffered an injury in fact, DiCocco cannot show causation. Moreover, because DiCocco chose to resign rather than retake the exam and face the possibility of termination, her resignation is not "fairly traceable to" DiCocco failing the PAT. Ansley, 861 F.3d at 517.

In sum, DiCocco does not have standing, and the Court must dismiss the case.13

III. CONCLUSION

DiCocco does not have standing to assert her claims. Accordingly, the Court will grant the DOJ's motion and will dismiss this case without prejudice. S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ("A dismissal for lack of standing ... must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.").

The Court will issue an appropriate Order.

Let the Clerk send a copy of this Order to all counsel of record.