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Arndt v. City of Colorado Springs

United States District Court, D. Colorado

July 12, 2017




         The 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 trial.

         The 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.

         After 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.

         In 2009, Chief of Police Richard Myers decided to implement physical fitness testing for all officers working in the Colorado Springs Police Department (“Department”).

         The 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.

         On the 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. Id.

         The 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.[1] 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 officers.

         In the 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.

         In 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. Id.

         Results 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 employment action.

         On 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.

         The 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.

         At the 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.

         All 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.

         The 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.

         “Title 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)).

         A 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).

         Plaintiffs 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.

         Did the 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 effect.

         “Statistical 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)).

         The 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).

         According 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 ...

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