The physical ability test that triggered a federal lawsuit over gender discrimination has cost taxpayers more than $650,000 so far, and the bill is mounting.
The PAT, adopted by Colorado Springs Police Department in 2014 after several years of study, resulted in a dozen female officers over 40 who failed the test being subject to "humiliation, disciplinary action, loss of compensation, and removal of duties," the lawsuit says.
That's because Police Chief Pete Carey a year ago adopted punitive measures to enforce the PAT policy, the lawsuit says, requiring officers who failed to be placed on light duty and not allowing them to appear in uniform or "wear any attire that would identify him/her as a police officer," including carrying a gun visible in public.
(It's worth noting that Carey took the PAT test in 2014 and 2015 and passed both times on his first try, according to Commander Tish Olszewski.)
But the blowback on officers isn't the only toll the PAT has taken. So far, the city has incurred expenses totaling $658,386 because of the PAT, according to records obtained by the Independent through open-records requests. That figure includes legal and consultant fees, and workers' compensation payments for cops hurt when training for or taking the PAT.
The expenses arise as the Colorado Springs Police Department remains short of officers compared to its pre-recession authorized strength of 688 officers. Today, the department is authorized to employ 679 officers but has only 657 on duty.
Despite that, Carey told the rank and file via email earlier this month he remains committed to the PAT, though he agreed to its temporary suspension amid the lawsuit due to his "duty to carefully steward the tax dollars and personnel entrusted to me."
Mayor John Suthers also stands behind the test, saying in a statement emailed to the Indy he supports efforts "to ensure all our police officers are physically able to carry out their basic responsibilities, including effectuating an arrest." He called the PAT "the metric by which CSPD makes the determination of these abilities..."
The city hired Human Performance Services, Inc., of Beltsville, Maryland, in 2011 and has since paid the company $209,679.
Legal fees total $134,514 so far — $25,241 for about 480 hours logged by five in-house attorneys, and $109,273 billed by the city's outside counsel, international law firm Ogletree, Deakins, Nash, Smoak & Stewart, for about 416 hours of work. The firm's rates vary from $250 to $315 an hour.
But the PAT's biggest cost has been for workers' compensation payments. The city has paid $314,193 so far to officers who suffered injuries because of the PAT. How many workers those payments represent wasn't disclosed, but the city said in response to a records request that 32 officers submitted workers' comp claims because of the PAT.
According to court records, injuries included a torn rotator cuff, shoulder injury followed by surgery, torn Achilles tendon and knee injuries. Several men are among those who were injured.
Additional PAT-related costs are unknown, because the city claimed "there were no responsive records" for the cost of back-filling shifts due to those workers' comp injuries and due to female officers who failed the PAT being placed on light duty.
The female officers' attorney, Donna Dell'Olio, says the shifts served by officers assigned to light duty totaled at least 4,000 hours in the last year. "That means fewer officers on the street or [the city] paying time-and-a-half for overtime to fill the shifts," she says.
Workers' comp, as well as legal expenses, likely will rise. Dell'Olio says similar federal cases have cost hundreds of thousands of dollars in attorney fees, expert witness fees and other expenses. And if the officers prevail, they would seek damages and attorney fees and costs from the city.
A more intangible cost is the loss of talent. "People have been forced out of the department," Dell'Olio says, noting at least four seasoned officers have resigned or retired from the city due to the PAT, including Lt. Maggie Santos, one of the plaintiffs.
Santos was seen as a top contender for a future command post, Dell'Olio says, but left the city for a job at Colorado College earlier this year.
Which is ironic, as Dell'Olio notes, considering the PAT was supposed to extend officers' longevity with the department. Instead, the CSPD lost experienced officers, she says, and has sidelined other long-serving cops; those placed on light duty include three homicide detectives and three sex-crimes detectives.
None of that means the city will necessarily lose the case. In fact, courts have ruled more frequently in favor of defendants, like the city, in PAT cases involving public safety, according to "A Review of Court Cases Involving Discrimination in Physical Ability Testing: 1992-2015," a paper completed in May 2015 by Casey Biggs at Western Kentucky University.
But the lawsuit is complicated, and other factors specific to the CSPD's PAT are at issue, including allegations that the PAT test:
• Failed to adjust for age and gender (only 2.2 percent of men failed, compared to 38 percent of women over age 40);
• Includes required tasks — push-ups, sit-ups, a repetitive running course and a timed obstacle run — that aren't relevant to the job; and
• Is used solely to determine fitness for employment without regard to teamwork, written and verbal communication, initiative, problem-solving and decision-making.
Dell'Olio suggests the city hold the contractor responsible. "The city paid HPS to develop the PAT test and they were fully advised by HPS," she says. "HPS should be paying the bill, not the taxpayers."
In court filings, the city denies the PAT was discriminatory or was used as a disciplinary tool; rather, the CSPD had "a business justification for all of its actions." Asked if the city might file suit against HPS, the City Attorney's Office says in a statement, "The City will not argue this pending case outside the confines of the litigation."
Deborah Gebhardt with HPS declined to comment.
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