United States District Court, D. Colorado
REBECCA ARNDT, NICOLE BALDWIN, CATHY BUCKLEY, STACEY CLARK, DONYA DAVIS, JULIE GARRETT, CAROLYN GRAVES, SAMANTHA LEMBERGS, JENNIFER LEWIS, GERALDINE PRING, MAGDALENA SANTOS, AND TERRY THRUMSTON, Plaintiffs,
CITY OF COLORADO SPRINGS, Defendant.
FINDINGS, CONCLUSIONS AND ORDER DECIDING
PLAINTIFFS' CLAIM OF DISPARATE IMPACT
RICHARD P. MATSCH SENIOR DISTRICT JUDGE.
Second Amended Complaint, filed February 1, 2016, includes a
claim that the use of a physical fitness test to determine
continuation of employment as Colorado Springs Police
Officers has had a disparate impact on women officers over 40
years of age in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. That
being an equitable claim to be determined by the Court, a
motion to bifurcate it from the other claims was filed on
September 2, 2016 (doc. 102). After hearing the
defendant's opposing arguments, the Court denied that
motion, finding that the factual questions were too common
with the jury claims to be determined at an earlier bench
parties then filed motions in limine and under Fed.R.Evid.
702, challenging the opinions in the reports of John Peters;
Dan Montgomery; Arthur Weltman, Ph.D.; Kurt Kraiger, Ph.D.;
and Norman D. Henderson, Ph.D., submitted under Fed.R.Civ.P.
26(a)(4)(B) and their deposition testimony. After reviewing
the papers filed on those motions, the Court determined to
proceed with the bench trial permitting the witnesses to
testify and considering the objections in determining the
credibility of those witnesses. There was no objection and
the trial proceeded after denial of the motions in open court
on October 31, 2016.
consideration of the evidence submitted at trial and the
written and oral arguments of counsel the Court now makes the
findings of fact and conclusions of law required by Rule 52
in the following narrative form.
2009, Chief of Police Richard Myers decided to implement
physical fitness testing for all officers working in the
Colorado Springs Police Department
City of Colorado Springs contracted with Human Performance
Systems, Inc. (“HPS”), a company based in
Beltsville, Maryland, to develop a physical abilities test
for use by the Department to evaluate all of its officers for
fitness for duty. The policy determination was that all
officers must demonstrate the ability to perform all of the
tasks of a patrol officer and if an officer failed the result
could be termination of employment.
recommendation of HPS, the Department adopted a four-part
physical abilities test (“PAT”), comprised of a
one-minute sit-up test; a one-minute push-up test; an agility
run; and a running test known as a BEEP test. Tr. Vol. VI
(Eells) at 556:8 - 557:14; Ex. 2 (“Validation
Report”) at CSPD-PAT 00434. These four tests were
selected because they were considered to be a significant
predictor of job performance and met the Department's
administrative decision to conduct the testing indoors.
scoring system adopted was a compensatory scoring method.
With that method, a participant's scores on each
component skill test are combined into one final score and
there is only one overall cut-off score. For the PAT, a
maximum of 8 points was assigned to each of the four skills
tests, for a total maximum score of 32 points. The passing score
was set at twenty points, with at least one point on each of
the four components. Validation Report at CSPD-PAT 00461 -
68. The same passing score applied to male and female
early months of 2013, the Department administered the PAT to
applicants. A total of 421 recruits took the PAT (343 males
and 78 females). Of those, 50% of the females failed,
compared to a 6% of the males. Henderson Ex. 4.
2013, the Department administered a practice test of the PAT
to all incumbent officers. Tr. Vol. VI (Eells) at 571:21 -
572:24. That practice test was given to assist officers in
assessing their physical fitness in preparation for mandatory
testing. Another objective was to determine whether the test
had an adverse impact on any particular group of officers.
of the 2013 practice test showed that 421 of 467 men passed,
for a passing rate of 90.5%. Forty (40) of 67 women passed
the practice test, for a passing rate of 59.7%. Kraiger Ex.
10, ¶ 5 at p. 3. Officers who failed the 2013 practice
PAT were not disciplined or subjected to any adverse
September 3, 2014, the Department - then under the direction
of Police Chief Peter Carey - issued General Order 1915,
stating that all sworn police officers employed by the
Department were required to participate in an annual physical
fitness test consisting of the pushup test; Illinois agility
run; sit-up test, and the BEEP test. That order announced
that “any employee who does not meet the Minimum
Performance Standard will be placed on light duty and on a
Performance Improvement Plan (PIP) until he/she can
successfully complete the process with a minimum score of
twenty (20).” Montgomery Ex. 6. The order stated that
officers who failed the test could retake it at least once
per month (or more frequently) and were required to pass
within six months. The order stated that officers placed on
light duty as a result of unsatisfactory PAT performance were
prohibited from participating in any promotional or
specialized selection process and that failure to pass within
the six-month period could result in termination of
employment for failure to meet the minimum qualifications of
a Colorado Springs police officer. Id.
Department issued Bulletin 548-14 on December 14, 2014,
stating inter alia, that officers placed on light
duty due to unsatisfactory PAT performance were prohibited
from responding to a scene or any type of field work
environment; were subject to restrictions with respect to
overtime work; could not be placed on-call or standby or have
a take-home vehicle; were not allowed to be in uniform or
wear any attire that would identify him/her as a police
officer, and were subject to certain restrictions with
respect to the carrying of a firearm. Montgomery Ex. 7.
conclusion of the 2014 testing cycle, approximately 96 % of
all officers passed the PAT on their first attempt, and the
majority of those who initially failed ultimately passed on
subsequent attempts. Tr. Vol. VI (Eells) at 578:14 - 579:17.
Of those who never passed the PAT, some left the Department
and some did not retake the test due to injuries.
twelve plaintiffs initially failed the PAT. Nine of them
passed on subsequent testing. Sergeant Garrett, Detective
Thrumston and Lieutenant Santos have not passed the test.
2014 PAT was the only complete mandatory testing cycle.
According to the parties' stipulation and entry of
preliminary injunction in this action, testing has been
halted. The Department has not terminated the employment of
any officer for failure to pass the PAT.
VII forbids ... ‘practices that are fair in form, but
discriminatory in operation, ' most often referred to as
‘disparate impact' discrimination.” Tabor
v. Hilti, Inc., 703 F.3d 1206, 1220 (10th Cir. 2013)
(quoting Lewis v. City of Chicago, 560 U.S. 205
(2010)); 42 U.S.C. § 2000e-2(k). “The disparate
impact ‘doctrine seeks the removal of employment
obstacles, not required by business necessity, which create
built-in headwinds and freeze out protected groups from job
opportunities and advancement.'” Tabor,
703 F.3d at 1220 (quoting E.E.O.C. v. Joe's Stone
Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000)).
plaintiff claiming disparate impact discrimination must
establish that an identifiable employment practice or policy
causes a significant disparate impact on a protected group.
42 U.S.C. § 2000e-2(k)(1)(A)(i); Tabor, 703
F.3d at 1220. If the plaintiff makes that showing, the burden
shifts to the employer “to demonstrate that the
challenged practice is job related for the position in
question and consistent with business necessity.” 42
U.S.C. § 2000e-2(k)(1)(A)(i); Tabor, 703 F.3d
at 1220-21. If the employer demonstrates business necessity,
the plaintiff may still prevail by “showing that the
employer refuses to adopt an available alternative employment
practice that has less disparate impact and serves the
employer's legitimate needs.” Tabor, 703
F.3d at 1221 (quoting Ricci v. DeStefano, 557 U.S.
557, 578 (2009)); 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
have identified a specific employment practice. They
challenge the Department's employment policies set forth
in General Order 1915 and Guidance 548-14. Plaintiffs
complain that requiring all sworn officers to pass the PAT
annually or risk disciplinary actions, including termination
of employment, has a disparate impact on female officers over
the age of 40 and/or all female officers.
plaintiffs prove by a preponderance of the evidence that the
use of the PAT in 2014 had a discriminatory impact on women
police officers exposing them to termination of their
employment after many years of satisfactory performance? The
plaintiffs have used statistical evidence to demonstrate that
evidence is an acceptable, and common, means of proving
disparate impact.” Tabor, 703 F.3d at 1222
(quoting Carpenter v. Boeing Co., 456 F.3d 1183,
1196 (10th Cir. 2006)).
Equal Employment Opportunity Commission (“EEOC”)
has issued a guideline, known as the
“four-fifths” rule, which states that a disparity
of 20% will be considered evidence of adverse impact. The
EEOC's “four-fifths” rule provides in part:
A selection rate for any race, sex, or ethnic group which is
less than four-fifths (4/5) (or eighty percent) of the rate
for the group with the highest rate will generally be
regarded by the Federal enforcement agencies as evidence of
adverse impact, while a greater than four-fifths rate will
generally not be regarded by Federal enforcement agencies as
evidence of adverse impact. Smaller differences in selection
rate may nevertheless constitute adverse impact, where they
are significant in both statistical and practical terms or
where a user's actions have discouraged applicants
disproportionately on grounds of race, sex, or ethnic group.
. . .
29 C.F.R. § 1607.4(D).
to the EEOC, application of the four-fifths rule involves the
following four steps:
(1) calculate the rate of selection for each group (divide
the number of persons selected from a group by the number of
applicants from that group).
(2) observe which group has the highest selection rate.
(3) calculate the impact ratios, by comparing the selection
rate for each group with that of the highest group (divide
the selection rate for a group by the ...