Federal Judge rules CSPD discriminated against female officers

Posted at 12:22 AM, Jul 12, 2017
and last updated 2018-08-09 02:23:35-04

A federal judge has ruled in favor of 12 female officers who sued the Colorado Springs Police Department over a one-size fits all physical fitness test.

The women argued the test discriminated against older female officers who faced termination if they didn’t pass.

Police Chief Pete Carey had “no comment” on the ruling after a judge called the fitness test “unfair” and discriminatory.

News 5 Investigates asked the police department how much tax payer money was spent on the city’s fail defense related to this case, but haven’t received a response yet.

“I don’t think any police chief in the country reading this decision would implement a physical fitness test like this,” attorney Donna Dell’Olio said.

Dell’Olio represented a dozen female officers in a 2015 lawsuit against the city and police department.

The controversy began in late 2014 and centered around a universal fitness test requiring all officers perform the same physical tasks in the same amount of time regardless of their age or gender.

Nearly 40-percent of the female force over the age of 40 failed.

Officers who failed were placed on desk duty and threatened with termination.

“We are so happy for these women officers of the Colorado Springs Police Department who will be allowed to fulfill their professions and continue to work which is all they wanted to do,” Dell’Olio said.

?Judge Richard Matsch said that “retroactively imposing a fitness requirement on women who have invested their lives as police officers is fundamentally unfair.”

The judge went on to say that requiring the officers to pass a one-test fits all fitness exam in order to maintain employment with the Colorado Springs Police Department violated Title VII of the Civil Rights Act which deals with gender discrimination.

According to Dell’Olio, Maggie Santos is one of two officers involved in the lawsuit who left the police department voluntarily before the court case was resolved.

Santos says the fitness test is responsible for ending her 24-year law enforcement career.

While she understands fitness is part of the job, she says there are other, more important aspects to law enforcement.

“Policing is not like what you see on TV which is physical and fighting,” Santos said. ” It’s a lot of interacting with the public, the community, speaking to them and calming them down while providing them resources. I would say the actual physical part is a minor piece.”

We gave Police Chief Pete Carey an open invitation Wednesday to stop by our studios and answer questions about the fitness test. He never showed up or replied to emails.

News 5 Investigates has confirmed the City of Colorado Springs has a copy of the judge’s order.

Original story from 2015:

A dozen female officers are suing the City of Colorado Springs over a new physical fitness test they say discriminates against women.

The issue:

Whether you’re a 50-year-old female or 21-year-old male, every officer is expected to perform the same physical tasks in the same amount of time regardless of age and gender.

Scoring points are counted equally and every officer must score a minimum of 20 points in order to successfully pass the test.

The fitness exam includes four components:



-Agility run

-Beep Test

38-percent of female officers over the age of 40 failed the test and say they were told to “shape up” in six months and pass, or face termination.

The 12 female officers suing are all over the age of 40.

All of them agree there should be fitness requirements, but argue the testing process puts them at a disadvantage and sets them up to be fired.

Testing requirements can be found at the bottom of this web article under our transparency report.

“My ability to do 40 push ups or sit ups in a set amount of time no way correlates my ability to talk to a 6’5” male and have to go hands on and put handcuffs on him,” Officer Rebecca Arndt said.

Arndt is on her 16th year as a patrol officer.

Her personnel file is impeccable, but because she couldn’t pass the physical abilities test, also known as “PAT,” she was placed on “limited duty”.

“I’m no longer in a patrol car and I can’t wear my uniform,” she said.

We asked, “You’re still considered a police officer?”

“Yes,” Arndt replied. “But, I’m not allowed to wear my uniform and not allowed to identify myself as an officer in any manner.”

Instead, she gets to stay inside the police station, answering phones and taking reports.

16 of the 42 female officers over the age of 40 failed, and were assigned similar duties.

“When I am told that because of this physical agility test that I’m not allowed to be the same police officer I was the day before I took that test, I feel like I need to stand up and say that’s not the only thing that I should be weighed on as a police officer,” Officer Geri Pring said.

Many officers agree, admitting the foot chases and fights you see on TV shows like “Cops” are a false representation of “everyday” police work.

“In the 10 years of law enforcement experience, I have never been in any kind of physical altercation,” Pring said.

“We know that we do have officers injured at a higher rate if they aren’t fit,” Commander Thor Eells said in a tactical training and conditioning conference with other law enforcement officers. “I’ve been saying for a long time it’s better to look good than to be good and it’s better to be lucky than good.”

“Out of the 16 years I’ve been on the force, I’ve never been injured or hurt making an arrest or taking any kind of physical enforcement action,” Arndt said.

To-date, the Colorado Springs Police Department has denied all requests from News5 Investigates for sit-down interviews regarding the PAT exam.

“I’m very proud of our effort and preparation that has gone into this (testing),” Chief Carey said in his year-end review obtained by News5. “I believe this (testing) is the right thing to do for the community and each other.”

Carey referred all questions to the Colorado Springs Police Protective Association.

“These (requirements) are minimum physical standards,” Officer Pete Tomitsch said.

Tomitsch is a 19-year veteran of the force and a former president of the CSPPA.

We asked him whether physical fitness standards should vary based on age and gender, rather than “one test fits all”.

“My answer is no,” he said. “It should not be modified. Either you can do the job or you can’t. If I call for cover (assistance) and lets say a citizen calls, they don’t get to choose to get a 25-year-old recruit who has been in the gym for the last three years. They are going to get whoever the police department sends.”

We asked Tomitsch, “Should an officer who fails an exam be terminated?”

“No officer has been terminated,” he said.

We replied, “We’ve heard officers who do not pass get multiple opportunities to pass and if they don’t, the are considered for termination. Am I understanding this correctly?”

“That’s a question for the chief,” he said. “Here’s what I can say and I’m not speaking for the chief, but termination is the end of the line of a long process from not passing a test to being terminated.”

Donna Dell’Olio is the lead attorney handling the lawsuit against the police department.

“The tragedy of this policy is that some of the best officers in the city have been taken off the street,” she said. “We couldn’t find another police department in the country that was implementing a policy like this one where there’s a possible loss of employment and cut off scores that weren’t normed by age or gender. Wages are being paid to the officer who’s on a performance improvement plan and then overtime has to be paid to officers who replace her in the street.”

We wanted to ask the police department about overtime paid to officers who are taken off the streets as a result of failing the PAT test, but once again, we were never given an interview opportunity.

News5 has learned more than half of the officers named in the lawsuit have since passed the exam and are back on the streets.

However, the officers suing feel it’s still important to move forward with the lawsuit, and hope the police department will modify physical fitness requirements based on age and gender.