City appeals ruling that CSPD testing discriminates against women 

A second shot

click to enlarge DUSTIN GLATZ
  • Dustin Glatz
The city of Colorado Springs wants a federal judge to reconsider a finding in a discrimination case, clearing the way for an appeal to the Tenth Circuit Court of Appeals.

At issue is the July 12 ruling by U.S. District Judge Richard Matsch that found a Physical Abilities Test (PAT) used by the Colorado Springs Police Department in 2014 to determine officers’ fitness for duty discriminated against women. A greater percentage of female officers failed the test than male officers.

The ruling is important, because a dozen women who filed suit against the city now face a jury trial on questions of damages and whether the city intended to discriminate. The judge’s opinion will weigh heavily in that case.

Neither the city nor the plaintiffs’ attorney would comment on the case, citing the pending litigation.

The city hired Human Performance Systems (HPS) of Beltsville, Maryland, owned by Deborah Gebhardt, to develop a test that would enable the city to measure officers’ ability to perform the tasks of a patrol officer; if officers failed, they could be fired for that alone under the city’s policy.

In early 2013, the CSPD administered the test to 421 recruits. Of the 78 females who took it, half failed, but only 6 percent of the 343 males failed. Later that year, the test was given to incumbent officers for practice, leading to a 90.5 percent pass rate for the 467 men, while only 59.7 percent of the 67 women passed. No adverse action was taken as a result of the test.

In September 2014, Police Chief Pete Carey issued an order mandating that all sworn police officers annually take the test, comprising push-ups and sit-ups, an agility run and a BEEP test, a shuttle run that was said to assess aerobic capacity. The order said those who failed would be placed on light duty until they passed, taking the test once a month for six months, after which they could be fired if they didn’t pass.

Those who failed were barred from working in the field, couldn’t work overtime or have a take-home vehicle, couldn’t wear police uniforms and were restricted from carrying a firearm. All 12 plaintiffs who sued the city failed that test, though nine subsequently passed. The city agreed to halt testing amid the lawsuit, and no one has been fired due to the test.

Federal law forbids practices that are fair in form but discriminatory in operation, which “create built-in headwinds and freeze out protected groups from job opportunities and advancement,” Judge Matsch wrote. While the Equal Employment Opportunity Commission guideline for discrimination is a selection rate of a protected class of less than 80 percent, Matsch noted it’s not a hard and fast rule the court must follow.

Finding that HPS’ scoring system and cutoff score were “meaningless,” and noting HPS itself acknowledged an error in scoring, Matsch ruled the test didn’t evaluate an officer’s overall suitability for duty. Rather, the test had an “adverse impact on women,” and those who failed the test were “shamed and ostracized” and suffered “the indignity of being denied recognition as a police officer,” Matsch wrote.

“To retroactively impose (the PAT test) on women who have invested their lives as career police officers is fundamentally unfair,” the ruling said.

The city argues in its Aug. 9 motion that Matsch misapplied the 80-percent rule. “The evidence presented at trial shows female Officers passed the 2014 PAT at 82.65 percent the rate of male Officers, resulting in no legally significant disparate impact and no basis for claiming the PAT discriminates against female Officers,” the motion contends.

The city also seeks an order that would allow an appeal before the next stage of litigation, noting that if the city prevails, the remaining aspects of the case could be rendered moot, which would allow all parties to avoid “extended and expensive proceedings.”
If that request is denied, the city argues, and appeals come at the end of the proceedings, it’s possible Matsch’s decision would be overturned. That would mean the other issues currently awaiting determination following Matsch’s decision would have been tried for no reason, wasting litigants’ resources and time.

A new wrinkle in the case emerged when, on Aug. 8, HPS and Gebhardt filed a notice in a separate lawsuit identifying the city and “certain of its employees” (who weren’t named) as “non-parties at fault.” That lawsuit, filed Jan. 23 in El Paso County District Court by the same 12 female officers, accuses HPS and Gebhardt of creating a test that wasn’t properly “normed” for gender and age, and didn’t include procedures that would help officers avoid injury. Nine of the 12 plaintiffs suffered injuries either training for the test or taking it. The lawsuit also alleges Gebhardt misrepresented her ability to the city to develop a test that was safe and didn’t discriminate.

In the non-party-at-fault filing, HPS and Gebhardt say the city and its employees “caused or contributed to Plaintiffs’ claimed damages through their determination and implementation of consequences of failing the P.A.T.” The fact that HPS and Gebhardt faulted the city further arms the female officers with witnesses hostile to the city as the case that will determine what damages, if any, the city must pay to the 12 women heads to trial.

City records, obtained via a records request by the Independent, show the city has spent about $923,000 on litigation costs in the federal case, with most paid to the Denver law firm of Ogletree, Deakins, Nash, Smoak & Stewart. Not included in that figure are nearly 1,000 hours of city staff attorney time spent on the case.

If costs exceed $1 million, the city’s insurance carrier will pick up the tab, including any damages stemming from the case, up to $10 million.

Asked about the rising fees, the City Attorney’s Office said in a statement, “It’s not in the city’s best interest, in terms of finances or resources including time, to run up attorney bills. The excess insurance provides a layer of protection for taxpayers to ensure budgeted funds are effectively leveraged in the legal defense of important cases.”

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