Arizona, State of et al v. Cottonwood, City of et al

Filing 42

ORDER granting 22 Motion for Partial Summary Judgment; granting in part and denying in part 24 Motion for Summary Judgment. a) Plaintiffs' retaliation claims (Count III and Count V) survive only to the extent that they claim that CPD retal iated against Det. Kuhlt for writing her March 9, 2009 letter asking CRD to re-open her case by sending her to a doctor for a medical evaluation andsubsequently putting her on modified duty. b) Plaintiffs' claim under 42 U.S.C. § 1983 (Coun t IV) is dismissed. c) All other claims survive.Defendants are hereby enjoined from requiring officers seeking promotionwithin the Cottonwood Police Department from passing a physical fitness exam as a prerequisite to promotion unless the exam in question has been validated as job-related specifically to the job for which the applicant is applying. Signed by Judge G Murray Snow on 7/20/12.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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The State of Arizona, et al.,
Plaintiffs,

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-and-

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Monica Kuhlt,
Intervenor-Plaintiff,

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vs.

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City of Cottonwood, et al.,
Defendants.

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No. CV-11-1576-PHX-GMS
ORDER

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Pending before the Court are Plaintiffs’ Motion for Partial Summary Judgment (Doc.

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22), Defendants’ Motion for Summary Judgment (Doc. 24), and Defendants’ Motion to

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Strike the Declaration of Roger E. Millsap (Doc. 36). For the reasons stated below, Plaintiffs’

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motion is granted and Defendants’ motion is granted in part and denied in part.1
BACKGROUND

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In or around the year 2000, Fitness Intervention Technologies (“FIT”) conducted a

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statewide study on police officers for the purpose of developing a physical fitness test for

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The parties’ requests for oral argument are denied because the parties have had an
adequate opportunity to discuss the law and evidence and oral argument will not aid the
Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d
724, 729 (9th Cir. 1991).

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Arizona law enforcement officers. (Doc. 23 ¶ 9). The study was conducted pursuant to

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agreements with the Arizona Peace Officers Standards and Training Board (“AZ POST”) and

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a number of law enforcement agencies within the state. (Id.) According to a later-prepared

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validation study, FIT tested 632 police officers’ ability to perform job-specific tasks, such

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as clearing a car from a roadway, pursuing a suspect, or extracting a person from a vehicle.

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(Doc. 25-7, Ex. 4b at E3). It then tested the officers’ performance on a battery of physical

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tests, and correlated the officers’ performance on the job-specific tasks with their

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performance on the physical fitness tests. (Id. at E4–E6). Based on the study, FIT

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recommended that police officers within the City of Phoenix, where the test was to be

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implemented, be able to meet the following standards on a battery of seven physical tests:

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1) complete an agility run in 18.2 seconds or faster, 2) bench press either 175 pounds or 79%

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of the officers’ body weight one time, 3) jump sixteen inches vertically, 4) run 300 meters

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in 60 seconds or faster, 5) do 30 push-ups in succession, 6) do 34 sit-ups in one minute, and

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7) run 1.5 miles in 15 minutes and 4 seconds or faster. (Doc. 23 ¶ 3). FIT recommended that

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Phoenix require both incumbent officers and officer applicants to meet all of these standards,

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and made no recommendations regarding promotions. (Doc. 25-7, Ex. 4b at G16–20).

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FIT presented the results of its study to the board of AZ POST, but AZ POST’s

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Executive Director, Lyle Mann, rejected the standards before the board took any steps to

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adopt them. (Doc. 23-1, Ex. E at 33:19–34:8). One issue of concern was that the use of

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absolute benchmarks for all officers could potentially have an adverse impact on women. (Id.

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at 40:11–17). More important to the decision, however, was the fact that FIT had assumed

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during its testing that officers who did not meet FIT’s standards for the job-specific tasks

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were not qualified to be police officers, when in fact there was “no indication that everybody

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wasn’t doing their job just fine.” (Id. at 41:17–18). Because Mann found that the failure was

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“a problem with the methodology in the establishment of a cut line,” he “simply shelved” the

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proposal from FIT. (Id. at 41:18–22).

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In February of 2005, Douglas Bartosh, who had been Chief of Police in Scottsdale

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during the period in which FIT conducted its study, was hired as the Chief of Police in
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Cottonwood, Arizona (“the City”). (Doc. 25 ¶ 3). In December of 2006, the Cottonwood

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Police Department (“CPD”) adopted General Order 206 (“GO 206”). (Doc. 25-16, Ex. 10).

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The order required that CPD sworn officers meet or exceed the standards recommended by

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FIT in the earlier study. (Id.). Under GO 206, applicants were required to meet or exceed the

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FIT standards before being hired, and incumbent officers were tested twice annually.

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Incumbent officers were given three years to meet the FIT standards, and officers who could

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not pass the FIT standards had the opportunity to pass a job task simulation test (“JTST”)

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instead. (Id.). GO 206 did not require that officers seeking promotion meet the FIT standards;

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in fact, it does not mention promotion in any way.

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At around the same time that CPD issued GO 206, however, it announced that it was

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hiring for two sergeant positions. (Doc. 23-1, Ex. C). In the announcement, CPD stated that

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following a written and oral exam, “candidates will be required to successfully complete the

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minimum standard outlined in the new fitness policy, General Order 206.” (Id. at 2). The

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requirement was added to the promotion materials by Bartosh, who said that “[t]he details

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of the promotional process is my decision, and I put those requirements together.” (Doc. 23-1

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at 137:9–10). When asked at his deposition why candidates were required to pass the FIT

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standards to be promoted when GO 206 provided them, as incumbent officers, with three

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years to meet the standards, Bartosh said that “[i]f you’re going to promote somebody,

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generally you want somebody who is going to set the example, be a leader, have credibility

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with the people that they’re going to lead.” (Doc. 23-1 at 14–17).

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Detective Monica Kuhlt applied for a promotion to sergeant during the January 2007

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promotion process. (Doc. 23 ¶ 20). Det. Kuhlt had been employed by CPD since 1997, and

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had held various positions, including as a patrol officer, a special assignment on a narcotics

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task force, and as a detective. (Doc. 23 ¶ 22). In her three most recent annual evaluations,

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Det. Kuhlt had received two summary evaluations of “Exceeds Job Standards,” the fourth-

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highest of five ratings, and one summary evaluation of “Superior Performance,” the highest

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of five ratings. (Doc. 23-2, Exs. M–O). In 2004, she was evaluated as having a “Good Solid

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Performance” in the subcategory of “Has necessary physical conditioning to safely perform
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assigned duties.” (Doc. 23-2, Ex. M at 5). Although this sub-category was discontinued in

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the 2005 and 2006 evaluations, she was evaluated as “Exceeds Job Standards” and “Superior

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Performance” in the broad category of “Work Habits and Physical Factors” in those two

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years respectively. (Doc. 23-2, Exs. N, O). Kuhlt took the written and oral portions of the

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sergeant’s exam, and received the second-highest score of those who took the test. (Doc. 23

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¶ 28).

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Det. Kuhlt took the physical test on April 25, 2007 and did not meet the FIT

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standards; she again took the test on July 10, 2007 and did not pass it. (Doc. 23 ¶ 32). Each

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time she took the test, she met the standards for the bench press, the push-ups, and the sit-

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ups. She failed to meet the standards for the agility run, the 300-meter run, and the 1.5-mile

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run. She passed the vertical jump on one occasion and failed it on the other. (Doc. 23 ¶ 32).

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At some point in 2007, Det. Kuhlt presented CPD with a letter from her doctor stating that

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she was being treated for “re-exacerbation of low back pain,” and that “intense physical

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activity [should] be avoided until Oct. 31, 2007.” (Doc. 25-19, Ex. 17). On October 17, CPD

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placed Det. Kuhlt on light duty “until you have been cleared by your physician for full duty

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including the fitness testing.” (Doc. 23-3, Ex. T). On the same day, Bartosh wrote a

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memorandum to Det. Kuhlt stating that he was skipping her on the promotional list because

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she had not met the FIT standards and because “[y]ou also stated that you were unsure when

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you would be prepared to participate in fitness training.” (Doc. 23-3, Ex. S). On January 16,

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2008, Kuhlt again took the test; she again met the FIT standards on some of the parts of the

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test and not on others. (Doc. 23 ¶ 37). In February of 2008, Bartosh became the City

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Manager of Cottonwood, and Jody Fanning became the Interim Chief of Police; Fanning

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became Chief of Police in June of 2008.

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On April 4, 2008, Det. Kuhlt wrote Fanning a memorandum in which she expressed

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her concerns about the FIT test. (Doc. 25-19, Ex. 22). In the memo, she noted that of the

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three women in CPD, only one had passed the test, and that the woman who passed it had

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subsequently failed it. (Doc. 25-19, Ex. 22). She wrote that “[t]he physical fitness standard

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has a disparate impact on women when compared to how the same standard affects men.”
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(Id.). She concluded that she believed that “the issues I have encountered while trying to get

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promoted are like the ‘glass ceiling’ affect [sic].” (Id.). On April 21, 2008, Det. Kuhlt was

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provided with a letter from Deputy Chief Fanning. (Doc. 25-19, Ex. 23). The letter stated that

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“[y]our perception that the tests are difficult for women to pass is well founded,” and noted

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that a study conducted by FIT “found that there is a disparate impact on women with these

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standards.” (Doc. 25-19, Ex. 23). The letter also stated that, according to FIT, the standards

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“are established to guarantee minimal fitness to perform the strenuous tasks of the job.” (Doc.

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25-19, Ex. 23) (emphasis in original). In his deposition, Fanning acknowledged that the letter

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was written entirely by the City Attorney, and that he had not edited or amended the letter

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after it had been provided to him. (Doc. 30-3, 122:20–23). Fanning stated in his deposition

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that he did not understand how the FIT standards were developed or validated, that he had

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not seen charts showing the pass rates of women and men on the various elements of the test,

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and that he had no specific knowledge of any facts that suggested that Det. Kuhlt could not

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meet the minimal standards of being a law enforcement officer. (Doc. 30-3, 124:8–125:11).

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In May of 2008, two more sergeant positions became available; for the 2008 hiring

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process CPD revised its application procedure so that applicants were required to take the

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FIT test before taking the written and oral exam, and those who failed the FIT test were not

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permitted to take the oral and written exams. (Doc. 23 ¶¶ 40–41). During the physical fitness

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test, Det. Kuhlt injured her back, and therefore did not take the oral or written portions of the

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promotional exam. (Doc. 25 ¶ 76; Doc. 23 ¶ 43).

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Kuhlt filed a charge of discrimination on May 6, 2008 with the Arizona Attorney

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General’s Office Civil Rights Division (“CRD”), alleging that the physical fitness test

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constituted sex discrimination because of its disparate impact on women. (Doc. 25-23, Ex.

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41). On February 13, 2009, CRD dismissed Kuhlt’s complaint. (Doc. 25-23, Ex. 42). On

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March 9, 2009, Det. Kuhlt wrote CRD and asked that it re-open her case. (Doc. 30-3, Ex. P-

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1). In her letter, Kuhlt stated that two recent applicants—a female state-certified Phoenix

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police officer and a male civilian—had both failed one portion of the FIT test, and the female

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officer had been sent home, while the male officer had been allowed to retake the portion of
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the test that he had failed. (Id.). On April 1, 2009, CRD re-opened the case, and issued a

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Reasonable Cause Determination on April 28. (Doc. 30-3, Ex. P-2–4). In its response to the

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Reasonable Cause Determination, the City’s attorney wrote, “[t]o be clear, the City does not

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dispute the fact that the physical fitness standards set forth in General Order 206 have a

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disparate impact on women.” (Doc. 30-3, Ex. P-4). In April of 2009, Kuhlt provided the

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officer conducting fitness training with a note from her doctor stating that she could take the

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fitness test, but that she should not run, and suggesting that instead she walk for two miles.

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(Doc. 25-19, Ex. 26). Officers from the CPD contacted the doctor, who confirmed that his

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only concern was the 1.5 mile run, and suggested that Det. Kuhlt’s aerobic ability be tested

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by a non-impact activity such as walking or riding a stationary bike. (Doc. 25-19, Ex. 28).

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The CPD then scheduled an appointment for Det. Kuhlt with another doctor, who determined

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on May 13, 2009 that Det. Kuhlt was not fit for duty as a police officer. (Doc. 25 ¶ 117).

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Kuhlt filed another charge of discrimination in June of 2009, alleging, among other things,

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that the evaluation was scheduled and her duty was modified in retaliation for her sex-

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discrimination complaint. (Doc. 25-19, Ex. 21). Kuhlt was placed on light duty until October

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21, 2009, when she was approved for full duty by another doctor. (Doc. 25 ¶ 136).

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In October of 2010, CPD changed the test that it uses to evaluate the physical fitness

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of its officers, substituting the Peace Officers Physical Aptitude Test (“POPAT”) for the FIT

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test. (Doc. 23 ¶ 46). The POPAT requires officers to climb over a solid fence, climb over a

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chain-link fence, run a 99-yard obstacle course, drag a 165-pound dummy, and run 500

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yards. (Doc. 23 ¶ 47). Although POPAT is commonly used in police academies, AZ POST

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does not recommend using it for in-service evaluations because of the risk that officers will

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be injured taking the test and because building and maintaining a course is costly. (Doc. 23-1,

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22:20–23:13).

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This lawsuit was originally filed by the CRD in Maricopa Superior Court on May 5,

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2009, alleging violations of state civil rights law. (Doc. 1-1). After over two years of

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litigation, Det. Kuhlt filed an Amended Complaint asserting federal claims for the first time.

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Defendants removed the suit to federal court on August 8, 2011. (Doc. 1). The Amended
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Complaint contains claims of disparate impact, disparate treatment, and retaliation under

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Arizona state civil rights law, Title VII, and 42 U.S.C. § 1983. (Doc. 1-7).
Both parties have moved for summary judgment on the disparate impact claim.

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Defendants have moved for summary judgment on all claims.
DISCUSSION

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I.

Legal Standard

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Summary judgment is appropriate if the evidence, viewed in the light most favorable

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to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact

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and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Substantive

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law determines which facts are material and “[o]nly disputes over facts that might affect the

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outcome of the suit under the governing law will properly preclude the entry of summary

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judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[A] party seeking

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summary judgment always bears the initial responsibility of informing the district court of

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the basis for its motion,” including identifying portions of the record that demonstrate the

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absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

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(1986).

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Once the moving party has detailed the basis for its motion, the party opposing

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summary judgment “may not rest upon the mere allegations or denials of [the party’s]

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pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.”

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FED. R. CIV. P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995);

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A fact issue is genuine ‘if the evidence

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is such that a reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v.

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Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at

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248). Thus, the nonmoving party must show that the genuine factual issues “‘can be resolved

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only by a finder of fact because they may reasonably be resolved in favor of either party.’”

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Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th

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Cir. 1987) (quoting Anderson, 477 U.S. at 250; emphasis in original). “[A]t the summary
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judgment stage the judge’s function is not himself to weigh the evidence and determine the

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truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477

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U.S. at 249.

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A principal purpose of summary judgment is “to isolate and dispose of factually

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unsupported claims.” Celotex, 477 U.S. at 323–24. Summary judgment is appropriate against

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a party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial.”

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Id. at 322; see Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving

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party need not disprove matters on which the opponent has the burden of proof at trial. See

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Celotex, 477 U.S. at 323.

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II.

Analysis

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This order will first consider the disparate impact claim, on which both parties have

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moved for summary judgment, and then consider the remaining claims, on which only

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Defendants have moved for summary judgment.

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A.

Disparate Impact

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Plaintiffs have filed disparate impact claims under both Title VII and the Arizona

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Civil Rights Act (“ACRA”). See 42 U.S.C. § 2000e-2(k)(1)(A)(I); Arizona Revised Statutes

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(“A.R.S.”) § 41-463(B)(1). The claims will be analyzed under the federal framework,

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because “federal case law is persuasive in interpreting the state statute.” Sees v. KTUC, Inc.,

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148 Ariz. 366, 368, 714 P.2d 859, 861 (App. 1985). Courts analyze claims of disparate

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impact in three steps. First, a plaintiff must show “that an employer uses a ‘particular

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employment practice that causes disparate impact on the basis of race, color, religion, sex,

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or national origin.’” Ricci v. DeStefano, 129 S. Ct. 2658, 2673 (2009) (quoting 42 U.S.C. §

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2000e-2(k)(1)(A)(i)). Although this first step is described as making a “prima facie” case,

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the burden on the plaintiff is higher during the first step of a disparate impact claim than the

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“prima facie” case in a disparate treatment case—the plaintiff must “demonstrate[]” that the

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practice causes a disparate impact, with “demonstrate” defined by statute to mean “meets the

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burdens of production and persuasion.” 42 U.S.C. §§ 2000e(m), 2000e-2(k)(1)(A)(I). The
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Ninth Circuit has held that the Plaintiff must “prove any such charge by a preponderance of

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the evidence.” Paige v. California, 291 F.3d 1141, 1145 n.4 (9th Cir. 2002).

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Once the plaintiff has established a prima facie violation by a preponderance of the

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evidence, a defendant bears the burden of “demonstrating that the practice is ‘job related for

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the position in question and consistent with business necessity.’” Ricci, 129 S. Ct. at 2673

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(2009) (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(I)). Should the employer meet this burden, a

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plaintiff “may still succeed by showing that the employer refuses to adopt an available

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alternative employment practice that has less disparate impact and serves the employer’s

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legitimate needs.” Ricci, 129 S. Ct. at 2673. The Court will discuss these factors in turn.

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1.

Prima Facie Case

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To meet their initial burden, Plaintiffs must identify “1) a specific employment

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practice that 2) causes a significant discriminatory impact.” Paige, 291 F.3d at 1145. Here,

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no party disputes that Plaintiff has identified the specific practice of using the fitness

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standards set fort in the FIT test as a requirement for promotion to sergeant.

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Plaintiff offers four pieces of evidence that the test causes a discriminatory impact:

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a declaration by Roger E. Millsap that the results of FIT’s own validation study demonstrate

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that the test has a disparate impact on women (Doc. 36), the results of people who took the

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test as administered by CPD, the letter from Chief Fanning stating that the FIT study “found

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that there is a disparate impact on women with these standards,” (Doc. 25-19, Ex. 23) and

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the letter from the City stating that “[t]o be clear, the City does not dispute the fact that the

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physical fitness standards set forth in General Order 206 have a disparate impact on women.”

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(Doc. 30-3, Ex. P-4).

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a.

Millsap Declaration

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In its validation study, FIT reported some of the results of the initial tests in Phoenix.

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(Doc. 23-2, Ex. I at G28–29). Defendants argue that Plaintiffs may not rely on these alleged

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results to show that females pass the test at a lower rate then males, because the results are

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inadmissible hearsay. (Doc. 24 at 3–4). Plaintiffs note that Defendants have previously

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acknowledged that the results show that women pass the test at much lower rates than men,
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and claim that the results themselves are therefore admissible as a statement against interest

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or an admission by a party-opponent. See FED. R. EVID. 801(d)(2), 804(b)(3). Although the

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parties’ statements regarding the test, as discussed below, are admissible as statements

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against interest, they do not serve to render the FIT report to which they refer admissible. FIT

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is not a party to this action and therefore its report is not a “party’s own statement.” Rule

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801(d)(2) is not applicable. Rule 804(b)(3) is only applicable if the declarant is unavailable;

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Plaintiffs have not argued that the declarant for the FIT report is unavailable. The results of

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the 2001 test, as reported in the validation study, are inadmissible hearsay.

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Nevertheless, Plaintiffs’ expert, Roger Millsap, has submitted a declaration evaluating

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the results of the FIT study. Dr. Millsap calculated the likelihood that, despite the results of

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the FIT study, females could be expected to pass the elements of the battery of tests at 4/5ths

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the rate of men. He found that on six of the seven tests, the probabilities that women would

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pass at such rates was two-one-thousandths of a percent. (Doc. 33-1, Ex. 1-A).

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Defendants’ motion to strike Dr. Millsap’s declaration was denied, and they were

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offered the opportunity to submit any evidence rebutting his conclusions. (Doc. 40). They

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declined to do so, instead submitting a “response” to the declaration challenging its

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admissibility. (Doc. 41). Defendants contend that because Cottonwood administered the test

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“under circumstances that are fundamentally dissimilar to the City’s testing program” and

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because Dr. Millsap “has no knowledge of how the FIT study participants would perform if

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they were re-tested following a training regimen,” Dr. Millsap’s conclusions regarding the

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FIT results are not admissible as evidence that women pass the City’s testing regimen at a

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disparate rate from men. (Doc. 41 at 2). They further contend that the underlying FIT

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study—the very study upon which they otherwise rely to claim that the City’s testing

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program has been properly validated—is not “the type of trustworthy material that is

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reasonably relied upon by experts in the field.” (Id.). Both arguments lack merit.

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It is true that the participants in the FIT study were not given an opportunity to train

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for the test, and were not told what benchmarks were considered passing. They were,

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however, all police officers who were recruited to take a physical fitness test; they were not
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a random population sample. To the extent that Defendants argue that the disparities between

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women and men’s performance on the test would disappear with training, only a month

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elapsed between the time that GO-206 was issued and Det. Kuhlt took the test as part of her

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application. The fact that officers were granted three years to pass the test is not relevant to

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the use of the test with regards to the promotional process, as discussed in greater detail

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below. Given the similar populations that took the FIT test and the City’s test and the

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identical requirements for passing the test, the fact that Det. Kuhlt could have trained for a

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month prior to the test does not reduce the reliability of Dr. Millsap’s conclusions.

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Nor are the underlying data so unreliable that Dr. Millsap’s report must be excluded.

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When an expert gives testimony based on statistics “of a type reasonably relied upon by the

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experts in the particular field in forming opinions or inferences on the subject, the facts or

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data need not be admissible in evidence in order for the opinion or inference to be admitted.”

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FED.R. EVID. 703. Defendants cite one case in which expert testimony was excluded because

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the underlying information on a document was described by its creator as a “a reverse

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guestimate,” and the expert had admitted that “he did not know what the document was, who

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created it, or how it was created.” Montgomery Cty. v. Microvote Corp., 320 F.3d 440,

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448–49 (3d Cir. 2003). In TK-7 Corp. v Estate of Barbouti, 993 F.2d 722, 732 (10th Cir.

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1993), also cited by Defendants, a purported expert opinion was rejected when the court

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determined that the person “professed no expertise” with regards to the subject matter of his

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testimony but merely “assumed the validity” of another’s report “despite the fact that he

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knew little or nothing at all” about its author. Such problems are not present here. Defendants

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themselves rely on the FIT study when they claim that the test has been properly validated.

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(Doc. 25 ¶ 20–22). It was proper for Dr. Millsap to rely upon it as well.

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Dr. Millsap’s declaration regarding the FIT study is admissible. Dr. Millsap’s analysis

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of the FIT study is “sufficient to show that the practice in question has caused the exclusion

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of applicants for jobs or promotions because of their membership in a protected group.”

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Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988).

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b.

Actual Test-takers
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The results of the test as it was actually administered by the City also support a claim

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of disparate impact. The City administered the test to ten women (three incumbent officers

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and seven applicants) and to ninety men (thirty-eight incumbent officers and fifty-two

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applicants). Two women passed the test, for a passage rate of 20%, and seventy-one men

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passed, for a passage rate of 79%. (Doc. 30-5, Exs. BB–DD). Defendants argue that “the City

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employed only four female officers during the period that the test was used, and that two of

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the females passed the test.” (Doc. 2). They arrive at this figure, apparently, by counting the

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three incumbent females who took the test (one of whom passed), along with the one

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applicant female who passed the test and thereby became an incumbent. The record shows

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that this female took the test a total of one time, on July 12, 2008, as an applicant. (Doc. 30-5,

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Ex. BB). Defendants offer no reason why the test this person took as an applicant should be

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included, while the six female applicants who failed the test should not. When considering

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whether a certain employment practice has a disparate impact, the Ninth Circuit disfavors

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artificially limiting the data available for analysis. See Hemmings v. Tidyman’s, Inc., 285

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F.3d 1174, 1187 (9th Cir. 2002) (“Federal courts have rejected defendant’s arguments that

16

statistical analysis should be limited to a pool of ‘qualified applicants’ where the job

17

qualification standards are themselves discriminatory”). The best available statistics of actual

18

test-takers include the results of everyone who took the test as administered by CPD.

19

To establish disparate impact by statistical disparities, “the statistical disparities must

20

be ‘sufficiently substantial that they raise . . . an inference of causation. The statistical

21

evidence may not be probative if the data are ‘small or incomplete.’” Shutt v. Sandoz Crop

22

Protection Corp., 944 F.2d 1431, 1433 (9th Cir. 1991) (quoting Watson v. Fort Worth Bank

23

& Trust, 487 U.S. 977, 995–97). While courts should therefore regard studies made up of

24

small samples with caution, “[b]y necessity, courts sometimes must rely on statistics derived

25

from small sample groups,” because otherwise employees of small organizations would be

26

denied “some of the protections that Title VII provides.” Shutt, 944 F.2d at 1434.

27

The Ninth Circuit’s approach to analyzing statistics involving limited numbers of

28

applicants is demonstrated in Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002). There, thirty-two
- 12 -

1

men and six women applied for a promotion within the Postal Service. The Postal Service

2

first screened the applicants, and then interviewed those whom it had selected. The screening

3

process (rather than the final selection) was targeted as an employment practice with a

4

disparate impact based on sex. Id. at 1122–23. The court expressed caution at considering

5

such a small sample size, but nevertheless proceeded to analyze the results of the screening

6

process. Id. at 1123 (“We observe initially that the probative value of any statistical

7

comparison is limited by the small available sample.”). In Stout, two of the six women, or

8

thirty-three percent, who applied for the promotion made it through the screening stage,

9

while thirteen of the thirty-two men, or forty-one percent, did. The court found that this

10

discrepancy was simply too small to state a prima facie case, particularly in light of the small

11

sample size. Id. In some cases the Ninth Circuit has rejected data outright when it is “derived

12

from an extremely small universe.” Morita v. Southern California Permanente Medical

13

Group, 541 F.2d 217, 220 (9th Cir. 1976) (holding that a sample size of eight people who

14

were promoted over a seventeen-year period was too small from which to draw any

15

inference). It has found that a small sample size can “call[] into question the statistical

16

significance of the 80 percent rule.” Bouman v. Block, 940 F.2d 1211, 1226 (9th Cir. 1991).

17

Nevertheless, when parties dispute the significance of a small sample size, “the district judge

18

may accept some statistical inferences and reject others based upon his perception of the oral

19

and documentary evidence placed before him.” Contreras v. City of Los Angeles, 656 F.2d

20

1267, 1273 (9th Cir. 1981).

21

Here, although the sample size is relatively small, the disparities are large. The small

22

sample size here suggest that relying on the eighty percent rule alone would not suffice to

23

find disparate impact. However, the men who took the test passed it at a rate of nearly four

24

times that of the women who took it. For the rates to be comparable, six more women, out

25

of ten who took the test, would have needed to have passing scores. Stated another way,

26

although women made up ten percent of those who took the test, they made up less than three

27

percent (two out of seventy-one) of those who passed it. (Doc. 30-5, Exs. BB–DD). Even

28

considering the small sample size, disparities of this magnitude establish Plaintiffs’ prima
- 13 -

1

facie case.
c.

2

Other Factors

3

In addition to Dr. Millsap’s declaration and the results of actual test-takers, other

4

evidence demonstrates that the test had a disparate impact, and that Defendants were aware

5

of this fact. Chief Fanning wrote a letter to Detective Kuhlt that the FIT study “found that

6

there is a disparate impact on women with these standards.” (Doc. 30-3, Ex. P-4). The City

7

itself wrote a letter to the CRD stating that “[t]o be clear, the City does not dispute the fact

8

that the physical fitness standards set forth in General Order 206 have a disparate impact on

9

women.” (Doc. 25-19, Ex. 23). As discussed above, while neither of these statements renders

10

the FIT report a statement against interest, because FIT is not a party, the statements

11

themselves about what the FIT report shows are admissions by party-opponents, and

12

therefore are not hearsay. FED.R.EVID. 801(d)(2).

13

Defendants do nothing to argue that the test as administered has not had an disparate

14

impact on female test-takers. They merely argue, without any evidentiary support, that the

15

actual numbers do not give rise to a result that is statistically significant for establishing a

16

disparate impact. They provide no expert or other testimony from which this court could

17

conclude that Dr. Millsap’s analysis or the results of the actual test as administered do not

18

demonstrate a disparate impact. At least twice they have acknowledged that the test has a

19

disparate impact on women, and they disputed the issue for the first time at the summary

20

judgment stage of this litigation.

21

Plaintiffs have presented admissible evidence that the test administered under GO 206

22

had a disparate impact on women. Defendants have offered no evidence that challenges

23

Plaintiffs’ evidence. Summary judgment is therefore appropriate in favor of Plaintiffs on the

24

question of whether the test has a disparate impact on women. See Celotex, 477 U.S. at 322.

25

2.

Business Necessity

26

Employment tests that have a disparate impact on members of a protected class “are

27

impermissible unless shown, by professionally acceptable methods, to be predictive of or

28

significantly correlated with important elements of work behavior which comprise or are
- 14 -

1

relevant to the job or jobs for which candidates are being evaluated.” Ass’n of Mexican-

2

American Educators v. California, 231 F.3d 572, 584 (9th Cir. 2000) (quoting Albemarle

3

Paper Co. v. Moody, 422 U.S. 405, 431 (1975). “Unless and until the defendant pleads and

4

proves a business-necessity defense, the plaintiff wins simply by showing the stated

5

elements.” Lewis v. City of Chicago, 130 S. Ct. 2191, 2198 (2010).

6

Defendants used the standards set forth in the FIT validation study when devising

7

their own test. The validation study determined, based on extensive analysis of job-related

8

skills, that the FIT standards measured the “minimum underlying physical ability or fitness”

9

for performing the physical tasks of being a police officer. (Doc. 25-6, Ex. 4a at B-1). The

10

validation study recommended that all incumbent officers and applicants meet the standards

11

developed in the testing, because by “having absolute job-related standards for all applicants,

12

Academy recruits and incumbents, Phoenix should have a measure of certainty that personnel

13

can meet the strenuous and critical physical demands of the job.” (Doc. 25-7, Ex. 4b at G-

14

30).

15

The test standards were designed to measure the minimal fitness requirements for law

16

enforcement officers in Phoenix. Defendants themselves note that the study “took place

17

under circumstances that were fundamentally different from the manner in which

18

Cottonwood utilized the test,” but have presented no evidence that they modified the test in

19

any way to make it applicable to Cottonwood. (Doc. 27 at 5). For example, Det. Kuhlt stated

20

in her deposition that she ran a mile and a half in Phoenix while applying for other law

21

enforcement positions, she ran nearly a minute faster than in Cottonwood, which she

22

attributes to the difference in altitude, “because Phoenix is much lower.” (Doc. 25-17, Ex.

23

11 at 26:2–3). There is no evidence that CPD considered adjusting the target time for the 1.5

24

mile run based on Cottonwood’s elevation.

25

There are material issues of fact as to whether the test accurately measures the

26

minimal standards necessary to be a Cottonwood police officer. Dr. Millsap challenges the

27

test’s methodology, but “[t]he question of whether a test has been validated properly is

28

primarily a factual question, which depends upon the underlying factual determinations
- 15 -

1

regarding the content and reliability of the validation studies.” Ass’n of Mexican-American

2

Educators, 231 F.3d at 585. In response to Dr. Millsap’s critique, FitForce acknowledged

3

that no different standards were set forth for different departments, but stated that “our

4

experience and feedback from the ALEA (Arizona Law Enforcement Academy) lead to the

5

conclusion that municipal police work in the state of Arizona does not vary significantly

6

from agency to agency.” (Doc.23-2 at 6–7). If the only question were whether the study tests

7

for a business necessity for hiring police officers, summary judgment would be inappropriate.

8

Plaintiffs are not arguing, however, that the test fails to measure the minimal standards

9

needed to be a police officer in Cottonwood. They argue instead that requiring passing scores

10

of only those officers applying to be sergeants serves no business necessity. Defendants

11

claim that the test measures the physical capacity necessary to be a sergeant because

12

sergeants in Cottonwood are patrol officers, and Bartosh stated that in Cottonwood, sergeants

13

are “doing the same kind of job duties as the officers.” (Doc. 25-3, Ex. 2 at 40:7–8). Even

14

granting that the duties of a sergeant and a police officer in Cottonwood are identical,

15

Defendants have pointed to no business necessity that required sergeants to pass the test

16

when incumbent officers were not required to. Under GO 206, incumbent officers were

17

granted three years in which to meet the fitness standards; Det. Kuhlt was not fired for failing

18

the test. (Doc. 25-16, Ex. 10 ¶ B). Nevertheless, passing the test was made a requirement in

19

the promotional process for the sergeant position. (Doc. 23-1, Ex. C). The only statement

20

from any defendant as to why sergeants must pass the test while police officers need not do

21

so is Bartosh’s statement that “[i]f you’re going to promote somebody, generally you want

22

somebody who is going to set the example, be a leader, have credibility with the people that

23

they’re going to lead.” (Doc. 23-1 at 14–17). Defendants have not argued that the FIT

24

standards measure the ability to set examples, lead, or establish credibility. The Ninth Circuit

25

has held that the California Highway Patrol did not meet its burden of production to show

26

that a promotional exam met a business necessity when “it did not present any evidence

27

regarding how the examinations actually test for the skills identified by the CHP as critical

28

to performing well in a particular supervisory rank.” Paige v. California, 291 F.3d at 1145
- 16 -

1

(emphasis added). Defendants’ argument that sergeants must pass the test because their job

2

requirements are the same as patrol officers fails because police officers were not required

3

to pass the test for three years after the implementation of GO-206.2

4

Plaintiffs have met their burden of showing a prima facie case, and Defendants have

5

not shown that there was a business necessity for using the test as a promotional tool when

6

officers were not required to pass it. Plaintiffs are granted summary judgment on their

7

disparate impact claim.

8

B.

Other Claims

9

Defendants claim that Plaintiffs are time-barred from challenging any action that took

10

place prior to July 11, 2007, and that Plaintiffs’ claim for injunctive relief is moot. Moreover,

11

they move for summary judgment on Plaintiffs’ disparate treatment claim, their retaliation

12

claim, and their § 1983 claim.3 These issues will be discussed in turn.
1.

13

Timeliness

14

Title VII requires an employee to file a charge within three hundred days after an

15

alleged unlawful employment practice occurred when the employee initially instituted

16

proceedings through a state agency. 42 U.S.C. § 2000e-5(e)(1) (2006). Plaintiffs filed this

17

charge on May 6, 2008, and Defendants argue that they therefore cannot challenge any

18

actions that took place prior to July 11, 2007. (Doc. 24 at 8). Defendants do not deny,

19

however, that the claim regarding Kuhlt’s 2008 application is timely, or that in the Ninth

20

Circuit, plaintiffs “are permitted to offer evidence of the pre-limitations [discrimination] in

21

the prosecution of their timely claims.” Lyons v. England, 307 F.3d 1092, 1108 (9th Cir.

22

2002). Moreover, Title VII and ACRA allow plaintiffs to recover damages incurred up to two

23
24
25
26
27
28

2

In addition, GO-206 provides that officers who fail the fitness battery can instead
take a “job task simulation test” (“JTST”). (Doc. 25-16, Ex. 10 ¶ D(4)(d)).
3

Additionally, they argue that punitive damages are not available. Plaintiffs concede
that punitive damages are not available, and state that Kuhlt “inadvertently” pled punitive
damages in her First Amended Complaint. (Doc. 29 at 17). Any claim for punitive damages
is therefore dismissed.
- 17 -

1

years prior to the filing of a claim, which Defendants also do not dispute. 42 U.S.C. § 2000e-

2

5(e)(3)(B); A.R.S. § 41-1481(G).4
2.

3

Mootness

4

In 2010, Defendants stopped administering the FIT test, using the POPAT test

5

instead.. (Doc. 25 ¶¶ 154–55). In Los Angeles Cty. v. Davis, 440 U.S. 625 (1979), a disparate

6

impact claim against a fire department challenging a civil service exam, the Supreme Court

7

set forth a two-part test for whether a claim is rendered moot when a department stops using

8

a challenged test during the course of litigation. Such a case is moot when “(1) it can be said

9

with assurance that there is no reasonable expectation that the alleged violation will recur,

10

and (2) interim relief or events have completely and irrevocably eradicated the effects of the

11

alleged violation.” Id. at 631 (emphasis added). The Court emphasized that “[t]he burden of

12

demonstrating mootness ‘is a heavy one.’” Id. (quoting United States v. W. T. Grant Co., 345

13

U.S. 629, 632–33 (1953)). The Ninth Circuit has found that a complaint against a public

14

agency was rendered moot following a policy change when the new policy “addresses all of

15

the objectionable measures that [the agency] took against the plaintiffs in this case, and even

16

confesses that this case was the catalyst for the agency’s adoption of the new policy.” White

17

v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000).

18

Citing to Davis and White, Defendants argue that because they have replaced the FIT

19

test with POPAT, “there is no need for an injunction.” (Doc. 24 at 17). Defendants rely

20

merely on the first prong of the Davis test, and do not argue that they have “completely and

21
4

22
23
24
25
26
27
28

Defendants state that the two-year provision is only applicable in cases involving
equitable tolling, relying on a Supreme Court dissent noting that to the two year period is a
“limitation on backpay” in cases where equitable considerations would otherwise allow for
more than two years of backpay. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
125 (2002) (O’Connor, J. dissenting). The statute’s text provides that liability may accrue for
“back pay for up to two years preceding the filing of the charge, where the unlawful
employment practices that have occurred during the charge filing period are similar or related
to unlawful employment practices with regard to discrimination in compensation that
occurred outside the time for filing a charge.” 42 U.S.C. § 2000e-5(e)(3)(B). This language
does not limit the two-year recovery period to cases in which the filing deadline was
equitably tolled.
- 18 -

1

irrevocably eradicated the effects of the alleged violation” or that switching to another test

2

“addresses all of the objectionable measures” of which Defendants complained. Davis, 440

3

U.S. at 631; White, 227 F.3d at 1243. Davis involved a challenge to a county’s proposal to

4

use the results of a 1972 civil service exam to fill temporary emergency firefighter positions.

5

Davis, 440 U.S. at 631. The county never followed through on the plan, and in the seven

6

following years implemented a hiring plan in which hiring of minority applicants

7

“consistently, though by varying amounts, exceeded 50%.” Id. at 632. In White, officers of

8

the Department of Housing and Urban Development (“HUD”) launched Fair Housing Act

9

(“FHA”) investigations against people who had engaged in protected First Amendment

10

activity. Subsequently, HUD issued a memo specifically discussing limits on FHA

11

investigations for protected First Amendment activity, and implemented its new policy

12

through a field handbook and training for officers, “address[ing] all of the objectionable

13

measures” complained of and rendering the future injunctive relief moot. White, 227 F.3d at

14

1243.

15

In their Second Amended Complaint, Plaintiffs noted that Defendants had switched

16

to using POPAT, but claimed that Defendants had not performed or asked any outside agency

17

to perform a study correlating performance on POPAT with performance as a CPD sergeant

18

or any CPD law enforcement position. (Doc. 1-7 at 141, ¶ 88–89). Defendants do not claim

19

that POPAT has been validated as a promotional tool, but have only stated that it is used “as

20

a graduation requirement” in Arizona police academies. (Doc. 24 at 17). Plaintiffs have not

21

sought an injunction barring Defendants merely from using the FIT test; they ask that

22

Defendants be enjoined “from engaging in any employment practice, including applying

23

invalid and unnecessary physical fitness performance standards that are known to have a

24

disparate impact on women.” (Doc. Doc. 1-7 at 145, ¶ B).

25

In Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), a district court found that

26

promotional tests in a law enforcement agency in 1975 and 1977 had a disparate impact on

27

women, but that a 1980 test had no such impact. It nevertheless issued an injunction ordering

28

“the County to develop a ‘validated’ sergeant examination and to hire female sergeants
- 19 -

1

consistent with their percentage representation as deputies.” Id. at 1232. The Ninth Circuit

2

held that prospective injunctive relief was not rendered moot by the 1980 test results, because

3

“[e]ven though the performance of women may have improved on the 1980 examination,

4

there is still no showing that it is a valid, job-related test.” Id. at 1233. Likewise, although

5

police academies use POPAT as a graduation requirement, Defendant has had offered no

6

evidence that passing the POPAT is specifically related to the job of being a CPD sergeant.

7

Plaintiffs’ claim for injunctive relief is not moot, and Defendants will be enjoined from using

8

any physical fitness test as a prerequisite for promotion unless the test has been specifically

9

validated to measure the job requirements of the position to which the incumbent officer is

10

seeking promotion. This suit does not involve disparate impact claims with regards to the

11

tests as administered to applicants, and Defendants are not enjoined from using POPAT in

12

its hiring, rather than promotional, process.

13

3.

Disparate Treatment

14

A plaintiff can establish a prima facie case of disparate treatment either by introducing

15

direct evidence that an employer expressly discriminated against a job applicant or employee

16

because of his or her gender, or by presenting indirect evidence that the plaintiff “(1) was a

17

member of a protected class, (2) she applied and was qualified for a position which she

18

sought, (3) despite being qualified, she was rejected, and (4) after she was rejected, the

19

position remained open and the employer continued to seek applications from people with

20

comparable qualifications.” Mondero v. Salt River Project, 400 F.3d 1207, 1211 (9th Cir.

21

2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). When the

22

plaintiff meets her initial burden, the burden shifts to the defendant “to articulate some

23

legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411

24

U.S. at 802. Should the defendant meet this burden, the plaintiff may nevertheless prevail if

25

she can “show that petitioner’s stated reason for [defendant’s] rejection was in fact pretext.”

26
27
28
- 20 -

1

Id. at 804.5

2

For the purposes of summary judgment, “the City will assume that Plaintiffs can

3

create a factual dispute as to [the prima facie case].” (Doc. 24 at 4). Likewise, Plaintiffs make

4

no effort to counter Defendants’ well-documented argument that CPD had a long interest in

5

establishing a fitness program and chose the FIT test after an officer reviewed the validation

6

study issued in connection with the 2001 test. (Doc. 24 at 5).6 Thus, Plaintiffs bear the burden

7

of showing that Defendants’ stated reason for using the FIT standards during the promotional

8

process is mere pretext.

9

An employee may show that an employer’s stated criterion is mere pretext if it is not

10

“applied alike to members of all [sexes].” McDonnell Douglas, 411 U.S. 804.7 A reasonable

11

jury could find that there is sufficient evidence that Plaintiffs have met their burden based

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5

Plaintiffs do not cite to McDonnell Douglas or mention the burden-shifting analysis.
Instead, they ask the Court to consider whether the challenged action would qualify as
disparate treatment under regulations issued by the E.E.O.C. (Doc. 29 at 8). For this
proposition, they cite to a 1975 Supreme Court case that considered whether an application
test had been properly validated according to E.E.O.C. guidelines. Albemarle Paper Co. v.
Moody, 422 U.S. 405, 434 (1975). Although the E.E.O.C. guidelines may be a proper
barometer from which to measure whether a particular test has been validated, they are not
a substitute for the McDonnell Douglas framework in a disparate treatment case, which the
Court will use to evaluate Plaintiffs’ claim.
6

Plaintiffs again cite to E.E.O.C. regulations for the proposition that an employer has
not satisfied its burden of putting forth a non-discriminatory reason when it states that it
relied upon a study purporting to validate a test under E.E.O.C. guidelines. (Doc. 29 at 8 n.2).
The burden on the defendant at this stage is “satisfied if he simply ‘explains what he has
done’ or ‘produc[es] evidence of legitimate nondiscriminatory reasons.’” Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) (quoting Bd. of Trustees of Keene
State College v. Sweeney, 349 U.S. 24, 25 n.2 (1978)).
7

Defendants claim that Plaintiffs rely on circumstantial evidence of discrimination
in their prima facie case, and that therefore Plaintiffs must put forward “specific and
substantial”evidence of pretext. Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th Cir.
2003). In fact, much of the evidence of pretext, such as the fact that a man was given the
opportunity to re-take only the item on the test that he did not pass, while women, including
Det. Kuhlt, were not, also doubles as direct evidence from which a jury could find Plaintiffs
have met their prima facie burden.
- 21 -

1

upon the evidence in the record. Defendants have stated reasons for using the FIT test that

2

differ from those promulgated in the validation study and contain some inconsistencies, there

3

is evidence that men were given leeway in passing the test while women were not, and there

4

is evidence in the record from which a reasonable jury could conclude that CPD failed to

5

discipline sufficiently an officer who repeatedly stated that women should not be allowed to

6

serve in law enforcement.

7

Although the FIT standards say nothing regarding promotion, and CPD allowed

8

incumbent officers to test up to the standards over three years, incumbent officers were

9

denied the opportunity to advance if they did not meet the standards. At his deposition,

10

Bartosh stated that the reason that the test was implemented for the promotional scheme was

11

that “[i]f you’re going to promote somebody, generally you want somebody who is going to

12

set the example, be a leader, have credibility with the people that they’re going to lead.”

13

(Doc. 23-1 at 14–17). When Chief Fanning was asked why the promotional process was

14

revised so that a candidate had to pass the FIT test before being allowed to take the written

15

and oral portion of the exam, the following exchange took place:
A: If we had a candidate that failed the PFT or did not take the
PFT—or we had a candidate that did not take the PFT, they
could, in turn, hold up the entire process for several years. And,
therefore, the candidates that were taking all the tests and
passing would not be able to be promoted because we had a
candidate that was not taking the PFT.
Q: Monica Kuhlt?
A: Right.

16
17
18
19
20
21
22
23
24
25
26

(Doc. 30-3, Ex. O at 152:9–20)
Defendants do not contest the fact that in July of 2007, both Lori Carver, a woman,
and Clint Combs, a man, applied to join the CPD, and each failed one of the seven tests in
the FIT battery.8 They further do not contest that when Ms. Carver failed the bench press, the
CPD officer administering the exam “told her she had failed the physical fitness test and that
she was able to come back and contact [a CPD officer] to find out when she could retest with
us.” (Doc. 25-12, Ex. 7a at 175:16–19). Nor do they contest that Mr. Combs was given the

27
28

8

Ms. Carver failed the bench press while Mr. Combs failed the 1.5 mile run.
- 22 -

1

opportunity to return to the CPD three weeks later and perform only the 1.5 mile run, which

2

he then passed. (Doc. 25 ¶ 67). The same officer who provided Mr. Combs the opportunity

3

to re-take one portion of the fitness test without having to exert himself by performing the

4

other portions of the test acknowledged that he did not offer Ms. Carver the same

5

opportunity, and has never offered Det. Kuhlt this opportunity, despite the fact that “I know

6

that Monica has passed almost every one [of the tests], but at different times.” (Doc. 25-12,

7

Ex. 7a at 185: 21–22). Moreover, records show that at least one male officer was excused

8

from taking the FIT test entirely. (Doc. 30-5, Ex. BB at COT/AZ 00398). Defendants argue

9

that this officer was “excused from taking the fitness test . . . for medical reasons” but do not

10

state whether this officer was thereafter placed on modified duty because he was unable to

11

take the test, as Det. Kuhlt was. (Doc. 35-1, Ex. 1). Defendants argue that Mr. Combs had

12

nearly passed the 1.5 mile run on his first try, and may make this argument to the jury.9 At

13

summary judgment, however, there is enough direct evidence in the record from which a

14

reasonable jury could find that CPD in fact administered the test differently to male officers

15

than it did to female officers.

16

Finally, Plaintiffs present evidence that Commander Jody Makuch, who supervised

17

Det. Kuhlt, repeatedly stated, at times in connection with this lawsuit, that women should not

18

serve as law enforcement officers. (Doc. 30-2, Ex. J at 89:17–22; Doc. 30-5, Ex. EE at

19

81:18–24, Doc. 30-5, Ex. FF at 62:10–12). Moreover, there is evidence that Chief Fanning,

20

upon verifying that Commander Makuch made such statements, ordered Commander

21

Makuch to apologize to Det. Kuhlt, but issued no other discipline and made no annotations

22

in Commander Makuch’s personnel file, even though CPD protocol requires, at minimum,

23

that a “letter of instruction” be filed in the personnel file of any officer who makes

24

derogatory comments based on sex. (Doc. 30-2, Ex. I-4). Defendants argue that Commander

25
26
27
28

9

It appears from the record that performing all of the tasks on a single day is a key
element to the test. Defendants’ expert stated in his deposition that he had previously written
an expert report for the Commonwealth of Pennsylvania defending the Commonwealth for
dismissing a police academy recruit who had asked to take the 1.5 mile run on a separate day
from the other elements of the test. (Doc. 25-10, Ex. 6 at 51:12–22).
- 23 -

1

Makuch’s comments that women should not be law enforcement officers constitute only

2

“[s]tray remarks” and therefore cannot be sufficient to establish pretext. Mondero, 400 F.3d

3

at 1213. In Mondero, the circuit found that the fact that two employees had rhetorically asked

4

“[t]hey bring a woman to do a man’s job?” could not establish pretext for an employment

5

decision made later by officers who were unaware that the remarks had been made. Id. at

6

1212. The court noted, however, that there was no evidence that “SRP’s decision makers

7

were influenced or even aware of the alleged gender bias of some of its agents.” Id. at 1213.

8

Here, there is evidence that the comments were drawn to the attention of the Chief of Police,

9

who issued a punishment that a reasonable jury could find fell short of that required by CPD

10

policy.

11

Defendants mount many arguments to Plaintiffs’ claims regarding pretext. They note

12

that Mr. Combs came relatively close to passing the 1.5 mile run on his first attempt, and that

13

being forced to apologize to a subordinate is “a significant event in paramilitary

14

organization” (Doc. 34 at 7 n.5). They will be free to make these arguments to the jury, but

15

“at the summary judgment stage the judge’s function is not himself to weigh the evidence

16

and determine the truth of the matter but to determine whether there is a genuine issue for

17

trial.” Anderson, 477 U.S. at 249. A reasonable jury could find that Plaintiffs have provided

18

evidence that the stated reason for adopting the FIT test for promotion to sergeant was

19

pretext, and summary judgment is therefore denied.
4.

20

Retaliation

21

To establish a prima facie retaliation claim, a plaintiff must show “1) her involvement

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in a protected activity, 2) an adverse employment action taken against her, and 3) a causal

23

link between the two.” Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir.

24

2002). Plaintiff filed her initial claim on May 6, 2008, and claims that, starting in May of

25

2009, she was denied a training opportunity, subjected to an unnecessary medical

26

examination, and placed on light duty in retaliation for her participation in the claim. (Doc.

27

1-7 at 15).

28

Kuhlt filed her initial action nearly a year before the alleged adverse action. “The
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1

cases that accept mere temporal proximity between an employer’s knowledge of protected

2

activity and an adverse employment action as sufficient evidence of causality to establish a

3

prima facie case uniformly hold that the temporal proximity must be ‘very close.’” Clark Cty.

4

School Dist. v. Breeden, 532 U.S. 268, 273 (2001); see also Soares-Haae v. Roche, 220 Fed.

5

Appx. 695, 697 (9th Cir. 2007) (“The suspension occurred almost a year after Soares-Haae

6

filed a series of EEO complaints, so there is not a sufficient temporal proximity between the

7

events to establish the required causality.”) (internal quotations omitted). However, on March

8

12, 2009, after her charge had been dismissed, Kuhlt wrote CRD a four-page letter urging

9

that the case be re-opened. (Doc. 30-3, Ex. P-1). The letter detailed additional alleged

10

discrimination, including the fact that a male applicant had been allowed to re-take one

11

portion of the FIT test after failing it, while a female officer had been sent home after failing

12

one portion of the test. (Id.). It moreover responded to the argument in Chief Fanning’s

13

original letter that the test was valid under the standards in Lanning v. SEPTA, 308 F.3d 286

14

(3d Cir. 2002), in which a 1.5 mile run had been approved as a fitness requirement for a

15

transit police force, by detailing the difference in responsibilities between a Cottonwood

16

police officer and a Philadelphia transit officer. (Id.).

17

Plaintiffs allege that the retaliatory activity consisted of CPD’s denying Kuhlt a

18

training opportunity, forcing her to undergo a physical examination, and placing her on

19

modified duty. Det. Kuhlt has received over 3,000 hours of “continuous training, proficiency

20

training and specialized training” during her tenure with CPD. (Doc. 25-23, Ex. 46). In light

21

of these substantial training opportunities, being scheduled for a medical appointment that

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required missing a single training course cannot be viewed as more than a “trivial harm[]”

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that does not qualify as a materially adverse employment action. Burlington Northern and

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Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Being scheduled for such an appointment

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does not qualify as behavior that “might have ‘dissuaded a reasonable worker from making

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or supporting a charge of discrimination.’” Id. (quoting Rochon v. Gonzales, 438 F.3d 1211,

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1219 (C.A.D.C. 2006)). Plaintiffs’ claim regarding the loss of a training opportunity is

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dismissed.
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Plaintiffs have shown that the mandatory medical test was adverse, and that it

2

happened soon enough after the letter asking that her case be re-opened that a reasonable jury

3

could conclude there was some causation. Little , 301 F.3d at 969. Although her doctor had

4

cleared her for all police activity except for the 1.5 mile run, and had recommended that she

5

take some other aerobic test, CPD sent her to another doctor who found that her

6

contraindication to running disqualified her from serving as a police officer at all. (Doc. 25-

7

19, Ex. 28; Doc. 25-19, Exs. 33, 35). A reasonable jury could accept Defendants’ argument

8

that Kuhlt was sent to the doctor based on the language in the release from her initial doctor,

9

but it could also conclude that the examination and subsequent duty modification was

10

retaliatory.

11

Defendant is therefore granted only partial summary judgment on the retaliation claim.

12

Although Plaintiffs may argue that CPD sent Kuhlt for the physical examination and

13

subsequently put her on light duty in retaliation for her letter asking that CRD re-open her

14

case, claims that CPD retaliated based on her initial compliant are dismissed, as is the claim

15

that denying Kuhlt the training opportunity was a materially adverse employment action.

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5.

Section 1983

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Plaintiffs have brought a claim under Section 1983 of Title 42 of the U.S. Code, which

18

provides a cause of action for persons who have been deprived of rights “secured by the

19

Constitution or laws” of the United States. 42 U.S.C. § 1983 (2006). Section 1983 “is not

20

itself a source of substantive rights” but only provides a cause of action “for vindicating

21

federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).

22

Plaintiffs’ Section 1983 claim seeks relief for the “[d]enial of equal opportunity to

23

employment based on sex in violation of 42 U.S.C. § 1983, as well as retaliation for her

24

participation in making a charge, testifying, assisting or participating in an investigation.”

25

(Doc. 1-7 at 15). As such, it appears that the Section 1983 claim seeks relief for rights

26

guaranteed by Title VII itself. Section 1983 claims, however, are pre-empted “where

27

Congress has evinced an intent to preclude such claims through other legislation.” Ahlmeyer

28

v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1056 (9th Cir. 2009) (holding that the ADEA
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1

pre-empts Section 1983 claim based on violations of the ADEA). “When the remedial

2

devices provided in a particular Act are sufficiently comprehensive, they may suffice to

3

demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex

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County Sewerage Auth. v. Nat’l Sea Clammers Assn, 453 U.S. 1, 19–20, (1981). Title VII

5

does not, of course, pre-empt claims brought under Section 1983 to vindicate rights not

6

granted by Title VII, such as the Fourteenth Amendment’s guarantee of equal protection. See,

7

e.g., Fitzgerald v. Barnstable School Comm., 555 U.S. 246, 256 (2009) (Title IX does not

8

pre-empt a Section 1983 claim alleging violations of the Equal Protection Clause because

9

“the protections guaranteed by the two sources of law diverge”). Plaintiffs have, however,

10

brought no Equal Protection claim, and may not use Section 1983 as a vehicle to bring claims

11

for which Title VII provides a complete remedy. See Great American Federal Savings &

12

Loan Association v. Novotny, 442 U.S. 366 (1979) (holding that a plaintiff may not avoid the

13

procedural requirements of Title VII by bringing the action under 42 U.S.C. § 1985(c)).

14
15

Plaintiffs’ Section 1983 claim is pre-empted by Title VII, and is therefore dismissed.
CONCLUSION

16

The actual results of those who took the test as administered by CPD show a

17

significant disparity by gender. Although the sample size is small, the discrepancy is large

18

enough for Plaintiffs to establish their prima facie case. Moreover, other evidence in the

19

record, including Dr. Millsap’s declaration and a written statement from Defendants that they

20

do not contest that the test has a disparate impact on women, assures that Plaintiffs have met

21

their initial burden. Defendants have offered no evidence as to why police officers had to

22

pass the test in order to be sergeants, when they were not required to pass the test to remain

23

on the force. Their argument that sergeants perform the same duties as police officers does

24

not explain why the test was required only for promotion. Plaintiffs are granted summary

25

judgment on their disparate impact claim.

26

The claim is timely with regards to the May 2008 promotional process, and evidence

27

regarding the earlier processes may be presented as Plaintiffs prosecute their timely claim.

28

The fact that CPD switched to another test during the course of this lawsuit does not render
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1

the injunctive relief moot, since Defendants do not allege that the test they are currently using

2

has been validated for promotion to the position of sergeant in the CPD.

3

The record indicates that at least one man was allowed to re-take a portion of the test

4

that he had previously failed, while no woman has been. Moreover, a CPD officer who made

5

repeated statements that women should not be allowed to serve as law enforcement officers

6

was disciplined in a manner that a reasonable jury could find fell short of written CPD

7

standards. CPD’s stated reason for using the test for promotions differs from the reasons

8

given in the FIT validation study, which makes no recommendations regarding using the test

9

for promotions. As a result, a reasonable jury could find that CPD’s stated reasons for using

10

the test as a promotional tool are pretext for gender discrimination.

11

Det. Kuhlt’s initial charge was filed too long before the alleged retaliation for a

12

reasonable jury to find causation from temporal proximity alone. Moreover, even though she

13

was denied one day of training, she received numerous other training opportunities, and the

14

training loss was therefore not adequately adverse to be cognizable as retaliation for

15

protected activity. The retaliation claim therefore survives only to the extent that Plaintiffs

16

allege that Defendants retaliated against Kuhlt for her March letter asking CRD to reconsider

17

her complaint by sending her for a physical evaluation and putting her on modified duty.

18

Plaintiffs’ Section 1983 claim relies entirely on the law undergirding Title VII, and

19

is therefore pre-empted. Plaintiff does not allege a constitutional violation in her Section

20

1983 claim.

21

IT IS THEREFORE ORDERED:

22

1.

Plaintiffs’ Motion for Partial Summary Judgment (Doc. 22) is granted.

23

2.

Defendants’ Motion for Summary Judgment (Doc. 24) is granted in part and

24

denied in part.

25

a) Plaintiffs’ retaliation claims (Count III and Count V) survive only to the

26

extent that they claim that CPD retaliated against Det. Kuhlt for writing her March 9, 2009

27

letter asking CRD to re-open her case by sending her to a doctor for a medical evaluation and

28

subsequently putting her on modified duty.
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b) Plaintiffs’ claim under 42 U.S.C. § 1983 (Count IV) is dismissed.

2

c) All other claims survive.

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3.

Defendants are hereby enjoined from requiring officers seeking promotion

4

within the Cottonwood Police Department from passing a physical fitness exam as a

5

prerequisite to promotion unless the exam in question has been validated as job-related

6

specifically to the job for which the applicant is applying.

7

DATED this 20th day of July, 2012.

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