City of Colorado Springs settles female police officer lawsuit for $2.5 million

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UPDATE:
Here's a statement from the female officers' attorney, Donna Dell O'lio:
On January 19, 2018 the City of Colorado Springs settled a sex discrimination lawsuit brought by twelve women police officers. The women claimed that the City’s physical abilities test discriminated against them and was not related to their jobs.
Last July federal District Judge Richard Matsch agreed with the women finding that the Colorado Springs Police Department’s physical abilities test violated Title VII of the Civil Rights Act of 1964, a federal anti‐ discrimination law.
The settlement ends two and one‐half years of litigation.
Donna Dell’Olio, attorney for the women, said that “ The Judge’s ruling and the size of the settlement should discourage other police departments from adopting similar tests that discriminate against women.”
“These 12 police women have made great contributions to the City of Colorado Springs and the Colorado Springs Police Department and will continue to do so.”
“The women have acted bravely to stop a practice that demoralized them and discouraged the retention of women in the police department.”
“Their purpose was always to stop a discriminatory practice from gaining a foot hold and spreading to other police departments. With Judge Matsch’s ruling and the substantial settlement they have achieved a great victory for women.”

————————ORIGINAL POST 5:30 P.M. Friday, Jan. 19——————-

The city of Colorado Springs has settled a federal lawsuit with a dozen current and former female police officers over a physical abilities test the officers alleged was unfair to women.
ILLUSTRATION BY DUSTIN GLANZ
  • Illustration by Dustin Glanz
The settlement comes after a key decision in the case was issued in July. That's when U.S. District Judge Richard Matsch ruled that a Physical Abilities Test (PAT) used by the Colorado Springs Police Department in 2014 to determine officers’ fitness for duty discriminated against women.

The city asked the court to reconsider the ruling, a necessary step before appealing it to the 10th Circuit Court of Appeals.

Now we learn the city has decided to have its insurance carriers pay nearly $2.5 million to settle the case. Of that, $882,054 will be paid to the officers' attorneys at Cornish & Dell O'lio of Colorado Springs. The remainder will be split among the dozen plaintiffs, meaning that if divided equally, each would receive $132,441.

As of 2015, the city had paid dearly to defend against the lawsuit, as we reported here. And that tab didn't include court time for hearings along the way.

Here's the upshot of why the city settled:
... defending the lawsuit is a drain on City resources. After considering numerous factors, including the tremendous amount of sworn and civilian employee time involved in a U.S. District Court jury trial in Denver, the length of appellate processes, and the existence of insurance coverage for monetary amounts paid to the Plaintiffs and their attorneys, it was determined that settlement was in the best interests of the City.
The lead attorney for the female officers, Donna Dell O'lio, could not be reached for comment.

Here's the city's full press release:


The City of Colorado Springs, Human Performance Systems, Inc. and twelve current and former Colorado Springs police officers have reached a settlement in cases pending before the United States District Court for the District of Colorado and the District Court of El Paso County. The Plaintiffs claimed that the physical abilities test adopted by the Colorado Springs Police Department discriminated against women over 40. The Plaintiffs also brought negligence claims against HPS, the company that the Police Department hired to develop the test.

The total settlement amount of $2,471,350 will be paid by Starr Indemnity, the City’s excess liability insurance carrier, and Lloyd’s of London, HPS’s insurance carrier. Plaintiffs’ attorneys will receive $882,054.42 of the total settlement amount and the remaining settlement amount will be divided among the 12 Plaintiffs. The City maintains that the test was not discriminatory and that it did not engage in any wrongdoing.

In November 2009, the Police Department began considering developing minimum physical ability standards that would apply to both applicants and current police officers. At the time, applicants were required to pass a physical abilities test; however, no physical ability testing requirements existed for current police officers. The Police Department sought input from numerous police officers, other City personnel and fitness professionals.

After careful consideration, the Police Department determined that a minimal level of physical ability should be the same minimum qualification for all police officers, regardless of rank, assignment, age or gender because all police officers are expected to respond to emergency situations. The decision was made to implement a physical abilities test for current police officers. The Police Department believed that all current police officers would pass a physical abilities test with sufficient time to prepare.

In July of 2010, the Police Department hired HPS to develop and guide implementation of a physical abilities test that reflected minimum physical performance standards for applicants and current police officers. In developing the test, HPS gathered job analysis data specific to the Police Department, including assessment of the physical ability of a representative sample of the Police Department’s officers. HPS completed the test development in October of 2011. In addition to recommending the appropriate components of the test, HPS provided minimum passing scores for each component.

There were four components to the test: (1) the Illinois agility run (a timed test involving running through a course while making quick turns); (2) the beep test (a timed test involving multiple runs on a 20 meter course); (3) push-ups; and (4) sit-ups. The attached document provides details of the scoring established by HPS and an example test result from an unnamed Colorado Springs police officer.

In September of 2012, all police officers were notified that the Police Department was implementing a mandatory physical abilities test and were informed of the test components and scoring. In 2013, in order to give police officers ample time to prepare for the test, the Police Department administered a mandatory practice test. There were no job consequences for failure to pass the practice test and only the individual taking the test was provided the results.

In 2014, two years after notifying all sworn personnel about the mandatory physical abilities test, the Police Department administered the test. To help police officers prepare for the test, the Police Department provided resources such as access to personal training and wellness coaching. The plan was to administer the test yearly. The overall pass rate for police officers who finished the test during the 2014 testing process was approximately 98%, including six of the 12 Plaintiffs.

Unlike the practice test, there were consequences for failure to pass the mandatory test, including light duty status (similar to duty assigned to police officers with injuries) and a six-month performance improvement plan that allowed at least six additional opportunities to pass the test. While police officers who did not pass the test after six months could be subject to discipline up to and including termination, no police officers were ever terminated for failing the physical abilities test.

The Police Department started administration of the second test in 2015. However, prior to completing testing, the Plaintiffs filed a lawsuit in the U. S. District Court for the District of Colorado and sought a preliminary injunction to prevent the Police Department from testing pending the outcome of the lawsuit. In November 2015, the City agreed to stop testing pending the outcome of the case.

Plaintiffs brought several claims against the City. Rather than hold one trial on all the claims in the lawsuit, U.S. District Court Judge Richard Matsch decided to have one trial on the issue triable to a judge and another trial on the issues triable to a jury. In July of 2017, following a bench trial, Judge Matsch held that the physical abilities test had a disparate impact on women.

The City strongly disagrees with Judge Matsch’s opinion and vigorously defended itself in the lawsuit. Unfortunately, the City was not allowed to appeal Judge Matsch’s opinion until the remaining claims were decided by a jury with Judge Matsch presiding.

The City stands by its decision to implement the physical abilities test for current police officers and does not believe that the test is discriminatory. The City’s position is supported by the high passage rate of police officers who finished the test during the 2014 testing process (approximately 98%).

However, defending the lawsuit is a drain on City resources. After considering numerous factors, including the tremendous amount of sworn and civilian employee time involved in a U.S. District Court jury trial in Denver, the length of appellate processes, and the existence of insurance coverage for monetary amounts paid to the Plaintiffs and their attorneys, it was determined that settlement was in the best interests of the City.

As a result of the U.S. District Court’s opinion, the Police Department has been unable to use the physical abilities test developed by HPS for applicants or current police officers. While physical fitness is a matter of personal choice, there are certain professions such as law enforcement that require a minimum level of physical ability. Looking forward, the Police Department will explore alternative physical abilities tests to ensure officers continue to be physically prepared to respond to calls for service. The safety of the community is the Police Department’s number one priority. The Police Department remains dedicated to providing excellent and responsive police services to the citizens of Colorado Springs.


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