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Colorado Springs pays $2.5M to female officers to settle physical fitness test lawsuit

January 19, 2018 Updated: January 20, 2018 at 7:25 am
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Officer Matthew Fleming, left, and his fellow graduating officers listen to Mayor John Suthers speech during the 67th Colorado Springs Police Department commencement ceremony that took place at Village Seven Presbyterian Church on Friday January 12, 2018 in Colorado Springs. The class was the largest one thus far for the department. (Dougal Brownlie, The Gazette)

The city of Colorado Springs has approved a $2.5 million settlement for 12 female police officers who say their careers were harmed by a physical aptitude test that discriminated against women.

The agreement comes six months after a federal judge ruled in the women's favor, upholding their claims of civil rights violations.

In the lawsuit, filed in May 2015 in U.S. District Court in Denver, the plaintiffs argued that mandatory police testing imposed disproportionate challenges on women over the age of 40. Nearly 40 percent of the department's women in that demographic failed the test the first time around, causing them to be stripped of their duties and placed on alternate assignments, the lawsuit said.

At the conclusion of a bench trial in July, U.S. District Judge Richard Matsch concluded the test "shamed and ostracized" the 12 plaintiffs - many of them decorated officers with decades of service - while providing "meaningless" results.

Plaintiffs attorney Ian Kalmanowitz and two of the plaintiffs declined to comment when reached by phone Friday, saying they weren't yet prepared to make public statements about the settlement. City spokeswoman Jamie Fabos said in a news release she wouldn't be accepting interview requests about the case.

Her statement said the city stands behind the tests that were administered, saying it "does not believe the testing 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 percent)," the statement said.

The settlement was approved as a way of ending a drain on city resources of defending against the claims, the city said.

"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 statement said.

Duane Oakes, Alamosa police chief and president of the Colorado Association of Chiefs of Police, said the decision will force law enforcement officials statewide to reexamine their policies.

"That's what law enforcement does based on new case law," he said. "We want to make sure we're compliant and doing the right thing."

He said his department conducts participation-based physical fitness evaluations with incentives - a paid day off - for those who pass. Physical fitness is essential for police officers, but officers aren't penalized for failing tests, he said.

"Our job is very demanding, and officers have to be physically fit in order to handle the stress of the job," he said.

Oakes declined to comment specifically on the Colorado Springs case. "Each department is different, and standards need to be gauged on the department's needs," he said.

Starr Indemnity, the city's excess liability insurance carrier, and Lloyd's of London, the insurance carrier for the company that designed the test, Human Performance Systems Inc., will pay $2,471,350 under the settlement, according to a statement by city spokeswoman Jamie Fabos.

Plaintiff's attorneys will receive $882,054.42 and the remainder will be split among the dozen women who sued.

The plaintiffs included lieutenants, officers and a sergeant. Of the dozen women who signed on, nine remain on the police payroll, while others have retired or found new jobs.

The city hired Human Performance Systems Inc. in 2010 to design a physical aptitude test for officers, and by 2013, police began administering practice tests.

The first cycle of official testing began in 2014. By November 2015, the city agreed to halt testing pending the outcome of the lawsuit. The department hasn't administered physical testing since.

Called a physical aptitude test, or PAT, it required officers to complete four tests with an average of at least five points each to pass. Points were given for completing sit-ups (a minimum of 12), push-ups (a minimum of eight) and two running tests.

Employees who did not pass were placed on light duty, which involves assignments without the physical requirements, such as making arrests. Officers who failed the test were instructed they had to retake it every month until they passed, and could be terminated after six consecutive months without passing, according to CSPD's General Orders.

Twenty-five of 636 officers failed the test on their first attempt, according to records released by Vincent Niski, deputy chief of the Colorado Springs Police Department.

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