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United States v. City of Erie

December 13, 2005


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.


This case was commenced on January 8, 2004 by the United States of America against the City of Erie based on the United States' allegation that the City's use of a physical agility test from 1996 to 2002 as a device to screen police officer candidates violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended. The United States alleges that the City's use of the test had a disparate impact on female applicants and was neither job related for the position of entry-level police officer nor consistent with business necessity. A non-jury trial was held from March 7 through March 10, 2005. Set forth below are this Court's findings of fact and conclusions of law:


A. Background Facts

1. For a number of years prior to 2004, the City of Erie administered a physical agility test ("PAT") as part of its process for hiring new police officers. The test was administered biannually on even years and each PAT remained in effect for a two-year period. (Tr. Vol. 1, pp. 159-63.)*fn1

2. In 1992, prior to the time period at issue in this litigation, the City of Erie utilized a PAT that incorporated pull-ups, push-ups, a vertical leap and a broad jump. (Tr. Vol. I, p. 161.) The pull-up component required male candidates to perform 4 pull-ups within 50 seconds and females to perform 1 pull-up within 50 seconds. (S 4.)

3. Due to a typographical error, the 1992 PAT was incorrectly administered, such that male candidates were erroneously required to do 6 pull-ups and female candidates were required to do 2. (S 5.) Because of this confusion, the City of Erie Civil Service Commission*fn2 decided to allow candidates who failed the 1992 PAT to take the written portion of the exam and, if they passed, to then retake the pull-up component of the test as originally designed. (S 6.)

4. The Civil Service Commission's decision to allow candidates to retake the pull-up component of the 1992 test engendered some controversy. In the course of the controversy, the Civil Service Commission became aware of complaints that the pull-up component of the 1992 PAT was unfair. (S 7.)

5. As a result of the controversy arising out the 1992 PAT, the Civil Service Commission requested that the Erie Bureau of Police develop a new physical agility test. (S 8.)

6. Then Erie Police Chief Paul DeDionisio, Jr. assigned Stephen Kovacs the task of working with the Civil Service Commission to develop and document a new PAT that would be fair and more "state-of-the-art." At the time, Kovacs was Captain of the Bureau's Support Division, which oversaw training, research and planning for the stipulations [see Doc. # 61] are indicated as: "S __." References to Plaintiff's Post-Trial Proposed Findings of Fact and Conclusions of Law [Doc. ## 83 and 85] are designated "P ___." Defendant's proposed findings of fact and conclusions of law [see Docket # 68] are designated as: "D ___." Excerpts from deposition testimony admitted at trial (see Plaintiff's Deposition Designations) are indicated by "Depo. Tr. (date) at pp. ___."

Bureau. (S 9-11.)

7. Captain Kovacs had no prior experience developing physical agility tests; however, he and Chief DeDionisio reviewed tests used by other law enforcement agencies such as the Pennsylvania State Police and the Pittsburgh Police Department. Capt. Kovacs also contacted the Pennsylvania Municipal Police Officer Education and Training Commission and was informed that the Commission had not established a standard for physical agility testing and had chosen, instead, to leave the determination of those standards to the municipalities. (S 12-14.)

8. Captain Kovacs instructed Charles Bowers, then a Lieutenant in the Traffic/Patrol Division (now the City's present Chief of Police), to use his experience as a police officer to develop a test that would simulate physical tasks that city police officers regularly encounter. (S 15.) At that time, Lt. Bowers had been a police officer for more than 20 years and had extensive experience in patrol duties, including the pursuit and arrest of suspects or other persons who need to be restrained. (D 118.)*fn3

9. Lt. Bowers had no education in the area of industrial/organizational psychology, exercise physiology, test development or test validation. (S 16.) Nevertheless, Bowers, like Kovacs and DeDionisio, understood that the City's reason for developing and administering the new physical agility test was to ensure that candidates possessed the physical ability necessary to do the job. (S 17.)

10. Newly-hired City of Erie police officers are assigned to patrol duties, typically for a period of at least 5 years, and must work for promotions to non-patrol duties. (Tr. Vol. I, p. 202; D 90.)

11. In developing the new PAT, Lt. Bowers examined the physical tests utilized by law enforcement in various different cities, but he could find no national or uniform standard to work from. (Tr. Vol. I, p. 172.)

12. Based largely on his own extensive experience working the streets, Lt. Bowers attempted to construct a physical agility test which would simulate a foot pursuit containing common obstacles, followed by a demonstration that the individual taking the test had sufficient strength to apprehend and physically restrain a subject. (S 18; Tr. Vol. I, pp. 163-65.) In developing the PAT, Lt. Bowers did not rely on expert opinions or studies specific to the Erie police, nor did he conduct any formal study himself. (S 19.)

13. Lt. Bowers ultimately designed the PAT to consist of a 220-yard run, during which each applicant was required to negotiate four obstacles, followed by a push-ups component (to be completed immediately after the obstacle course/run) and a sit-ups component (to be completed immediately after the push-ups). The four obstacles included in the 220-yard obstacle course/run were, in order: a six-foot high wall, which applicants were required to climb over, a window opening three feet above the ground, which applicants were required to climb through, a platform two feet off the ground and eight-feet long, which applicants were required to crawl under, and a four-foot wall which applicants were required to climb over.*fn4 (Tr. Ex. AA (Requests for Admission) and BB (Responses), Nos. 47, 48, 50, 53.)*fn5

14. In March of 1994, based on his own experience as a patrol officer, Captain Kovacs recommended that the City use the PAT developed by Lt. Bowers. (S 21, 23.) In making this recommendation, Captain Kovacs did not rely on external academic or professional opinions or studies specific to the Erie Police Bureau, nor did he conduct any formal study himself. (S 24.)

15. Each of the obstacles in the obstacle course/run portion of the PAT developed by Lt. Bowers and recommended by Captain Kovacs was included because, based on the experience of Bowers and Kovacs, as well as informal discussions with other incumbent officers, each of the obstacles simulated something patrol officers would be required to do on the job. (S 26.) In developing and recommending the PAT, Lt. Bowers and Capt. Kovacs attempted to limit the components of the test to ones that simulated specific tasks that a police officer might encounter in a foot pursuit; for example, they did not include pull-ups in the test because they did not believe pull-ups related to specific police officer tasks. (S 27.)

16. Captain Kovacs and Lt. Bowers included push-ups and sit-ups components in the version of the PAT recommended to the Civil Service Commission because they believed that push-ups and sit-ups, respectively, measure upper and lower body strength and, following completion of the obstacle course/run, would indicate whether a candidate had sufficient strength or endurance to struggle with and apprehend a subject after a foot pursuit. (S 28.)

17. The PAT recommended by Bowers and Kovacs in 1994 initially did not specify the number of push-ups or sit-ups that would be included in the test or any duration for the push-ups or sit-ups components; instead Capt. Kovacs recommended that a "pre-test" of incumbent officers be conducted before the test was implemented in order to set the "exercise repetition standard" (i.e., number of push-ups and sit-ups included in the test). (S 29.)

18. Capt. Kovacs recommended that the number of push-ups and sit-ups required be set by "pre-testing" incumbent officers because he believed that: (1) the more physical ability (as measured by the push-ups and sit-ups) a candidate could perform, the better able to apprehend and subdue a subject that candidate would be; but 2) the City could not "require a higher physical ability level [than] that already demanded from active officers." (S 30.)

19. Lt. Bowers chose 15 seconds as the time periods to be used for the push-ups and sit-ups components of the standard-setting exercise because he thought that a total of 30 seconds was about the duration of an average physical struggle. (S 31, Tr. Vol. 1, p. 172.)

20. In order to conduct the pre-testing or "standard-setting" exercise, Capt. Kovacs requested that Sgt. James Beskid, who was then an officer under his supervision, provide a list constituting a "random selection" of officers. (S 32.) Sgt. Beskid, who is not an expert in statistics or sampling, consulted a textbook and determined that a sample of at least 30 officers should be used for the standard-setting exercise. (S 33.) Sgt. Beskid produced a random list of 50 Erie police officers so that, in the event some officers were excused from participation in the standard-setting exercise, a sample of 30 would be available. (S 34.)

21. The Bureau of Police ordered the first 30 officers on the random list prepared by Sgt. Beskid to participate in the standard-setting exercise. (S 35.) However, the union representing the City's police officers took exception to the City ordering officers to participate without first negotiating with the union. (S 36.) Accordingly, the City issued a memo requesting volunteers from among the 50 officers on the list prepared by Sgt. Beskid, as well as other incumbent officers not on the list, to take the standard-setting exercise. (S 37.)

22. Ultimately, 19 incumbent officers volunteered to participate in the standard-setting exercise, which was conducted on May 19, 1994. (Tr. Vol. 1, pp. 168-70, Ex. 11.) The use of 19 incumbent officers represented 14% of the total 134 Erie Police Officers assigned at that time to the Patrol/Traffic Division of the Erie Police Bureau. (D 89.) Of the incumbent volunteers, 3 were females and 8 were members of the SWAT team.*fn6 (D 91, 95.) The average age of the incumbents was 35.8 years. (Ex. 11.)

23. In 1994, each of the 19 incumbent officers who participated in the standard-setting exercise was performing his/her job adequately. (S 39.)

24. The test was administered to the incumbents in such a fashion that each officer ran the 220-yard course, negotiating the four obstacles, immediately thereafter performing as many push-ups as possible in a 15-second span and immediately thereafter performing as many sit-ups as possible in a 15-second span. The thirty-second allotment for combined push-ups and sit-ups was added to the officer's time on the obstacle course, to produce a final time. (Ex. 11.)

25. The average number of push-ups performed by the incumbents in 15 seconds was 17; the average number of sit-ups performed in 15 seconds was 9, and the average total time to complete the test was 87 seconds. (Ex. 11.)

26. Three female incumbents participated in the standard-setting exercise. Their respective scores are as follows. Candice McGahen: 15 push-ups/13 sit-ups and total time of 92 seconds; Tracy Stucke: 16 push-ups/8 sit-ups and total time of 86 seconds; Julie Kemling: 18 push-ups/11 sit-ups and total time of 80 seconds. (Ex. 11, D 93.)

27. The number of push-ups and sit-ups to be required in the PAT (as well as the cutoff time used as the passing standard) ultimately was the decision of the Civil Service Commission. (S 40.) However, Lt. Bowers made recommendations as to the passing standards for the PAT.

28. Lt. Bowers recommended that the City use the average numbers of push-ups and sit-ups performed by the 19 incumbents in the standard-setting exercise, rather than their low scores, because he felt it would be fair. (S 41.) Lt. Bowers based this recommendation on the fact that the incumbent test-takers were, on average, older than most police officer applicants, and the incumbents (unlike new applicants) had not had time to prepare for the PAT. Lt. Bowers also believed that an officer's physical conditioning usually deteriorates once he or she is on the job, so he felt it was appropriate to hold new applicants to a standard higher than the lowest scores of the incumbent test-takers. (Tr. Vol. 1, pp. 170-71.)

29. Lt. Bowers felt that using lower scores would not have met the needs of the Bureau. (Tr. Vol. 1, p. 171.)

30. In setting the passing cut-off score for the PAT, Lt. Bowers advocated raising the time limit from 87 seconds (the average total time of the incumbents) to 90 seconds. This was not done for any particular reason, but simply to produce an even number. (Tr. Vol. 1, p. 171.)

31. Capt. Kovacs consulted with Marcia Haller, an attorney who was then a member of the Civil Service Commission, regarding the number of push-ups and sit-ups that would be required (as well as the cutoff score or passing standard). Ms. Haller indicated to Capt. Kovacs that the City was not required to use the minimum performance by the incumbents and stated that they instead would use the averages. Ms. Haller believed the push-ups and sit-ups included in the PAT were a measure of "basic physical fitness." (S 42, 43.)

32. The representatives of the City involved in setting the PAT's passing standards decided to use the average numbers of push-ups and sit-ups completed by the 19 incumbents in the standard-setting exercise and to use the average time it took the 19 incumbents to complete the standard-setting exercise as the mandatory standard for new officer applicants. The City representatives chose those averages as a "medium" or "average" level of physical ability, believing that would be "fair" and "the best way to go." (S 44.)

33. Thus, as adopted and initially administered in 1994, the PAT required applicants to complete the 220-yard obstacle course, perform 17 push-ups and then perform 9 sit-ups, all within a 90 second period. Unlike the version administered to the 19 incumbents (which consisted of three, separately time components), the PAT as adopted utilized a single passing standard of 90 seconds. (Tr. Ex. AA and BB, No. 59.)

34. Through the years the PAT underwent various permutations in an effort to maintain its relevance to the police officer job and to respond to complaints from the community regarding the number of women who failed. (D 98.)

35. In 1998, a 5-second grace period was added such that candidates who completed the test within 95 seconds were permitted one opportunity to take a re-test. (Tr. Vol. I, p. 174-76, Ex. 4.)

36. During the administration of the 1998 PAT, an 11-year old girl, described as "petite," "wiry," "very active" and a "gymnast," observed the test and requested to take it unofficially at the end of the applicant testing. She passed all elements within the allotted 90 seconds. (Vol. I, pp. 75-77, D 117.)

37. Nevertheless, following administration of the 1998 PAT, local citizens representing the Erie County Human Relations Commission and women's advocacy organizations complained about the disparate passing rates and focused on the six-foot solid wall portion of the test as being excessively difficult for women and not adequately job-related to justify its use. (D 99.)

38. Accordingly, in 2000, pursuant to a recommendation by Chief DeDionisio and upon the Civil Service Commission's approval, the PAT was further modified such that applicants were given the option of climbing over either the six-foot wooden wall or a six-foot high chain link fence. Additionally, candidates had the option of using a 12-inch high wooden box for assistance. These changes were introduced in order to make the obstacles more appropriate and "practical" (i.e., like what an officer is likely to encounter in the City of Erie) and also to make the test more fair to women. (S 45, Tr. Vol. I, p. 175, 177, Ex. 9.)

39. Lt. Joseph Kress videotaped portions of the 2000 PAT administration and the tape was accepted into evidence as Defense Exhibit 1. (D 102.)

40. In 2002, the City introduced further changes to the PAT in an effort to increase the passing rate for females. (Tr. Vol. I, pp. 178-80.) For one, the PAT was administered only after applicants had first passed the written exam. Second, the push-up/sit-up components of the PAT were moved to the beginning of the test, such that they preceded the obstacle course. Third, the number of push-ups was decreased from 17 to 13, while the number of sit-ups was increased from 9 to 13.*fn7 Finally, training sessions were scheduled and publicized for applicants. (Tr. Vol. I, pp. 178-80, D 105-106.)

41. Extremely wet weather on the date of the 2002 PAT resulted in a 5-second extension of the cut-off time to 95 seconds, with a further 5-second grace period being allowed on top of that such that candidates completing the PAT within 100 seconds could re-take the test once. (D 107.)

42. The changes in the 2002 PAT caused the rate of women passing to rise to 30% (7 of 23), so that those seven women, having passed the written test and the PAT, would be placed on the Civil Service list and ranked in order of their written scores, accounting for veterans' preference of 10 points as mandated by Pennsylvania law. (D 108.)

43. The City administered the PAT as part of each of the entry-level police officer selection processes between 1994 and 2002, the period under challenge here. Applicants had to pass the PAT in order to remain eligible for hire and continue on in the selection process. (Tr. Ex. AA (Requests for Admissions) and BB (Responses), Nos. 14, 21, and 22.) As noted, until 2002, the PAT was administered prior to the written exam.

44. The City of Erie Bureau of Police developed, and the Civil Service Commission approved and adopted the PAT, without consulting any expert(s) in the areas of physical abilities, job analysis, physical or other job requirements, employment testing or test validation. (S 46, 47.) No exercise physiologists or industrial/organizational psychologists were involved or consulted in the development of the PAT. (S 25.)

45. The following table represents the results of the City's use of the PAT between 1996 and 2002 in terms of male and female passing rates:

YearFemale Passing RateMale Passing Rate 19964.3%53.7% 199814.3%72.2% 200011.8%77.3% 200230.4%84.7% 1996-2002 Combined12.9%71.0%

(Tr. Ex. AA and BB, Nos. 27-31.)

46. As of the initiation of this lawsuit, the sworn workforce in the Erie Bureau of Police consisted of 193 men and nine women. At the time of trial, there were only eight female sworn officers (about 4% of the total sworn workforce) and only three female officers working in the patrol division. (See Complaint [Doc. # 1] at ¶ 14; Answer [Doc. # 3] at ¶ 1; Tr. Vol. 1, p. 197-98; see also Bowers Depo. Tr. (1/12/05) at pp. 21-22.)

47. In contrast, the police departments of other Pennsylvania jurisdictions, (i.e., Harrisburg, Pittsburgh and Philadelphia) have reported a percentage of female police officers earning at least $25,000 per year in the range of 20-27%. (S 88.)

48. On August 5, 2004, the United States moved for summary judgment on, inter alia, the issue of whether the City's use of the PAT caused a disparate impact against female candidates. The City conceded the point and, on October 8, 2004, the Court found that the City's use of the PAT caused a disparate impact against female applicants for the entry-level police officer position between 1996 and 2002.*fn8 (See 10/8/04 Hrg. Tr. [Doc. # 41] at pp. 16, 26.)

49. Between March 7 and 10, 2005, a bench trial was held on the remaining liability issues, to wit, whether the City's use of the PAT was job related for the position of entry-level police officers and, if so, whether the passing standard used by the City was consistent with business necessity.

B. The Evidence Presented at Trial

50. The City presented the testimony of one expert witness, Paul Davis, Ph.D., and several lay witnesses, including current Chief of Police Charles Bowers, seven of the City's eight female police officers, and an instructor from the Mercyhurst College Municipal Police Training Academy.

51. The United States presented the testimony of three expert witnesses, David Jones, Ph.D., William McArdle, Ph.D., and Bernard Siskin, Ph.D.

Definitions/Background Relating to Expert Testimony

52. Industrial/organizational psychology ("I/O psychology") involves the application of principles of psychology and scientific research in the workplace, commonly in areas such as job analysis, job requirements, employment testing and selection, and performance measurement, among others. I/O psychology is recognized as a specific practice under Division 14 of the American Psychological Association. (S 55.)

53. In the field of I/O Psychology, there are published standards and principles that guide professionals in developing, using, and evaluating tests. Specifically, such standards and principles are stated in:

Standards for Educational and Psychological Testing (the "Standards") (American Educational Research Association, American Psychological Association, and National Council on Measurement in Education, 1999); and Principles for the Validation and Use of Personnel Selection Procedures (the "Principles") (Society for Industrial and Organizational Psychology ("SIOP"), 2003) (Tr. Ex. P at ¶ 16; Tr. Vol. 2, pp. 111-12; Tr. Vol. 2, pp. 71-72.)

54. The Principles focus specifically on the development, use and evaluation of personnel selection/employment tests. (Tr. Vol. 2, p. 71-72.) The Principles and Standards apply to the development and validation of physical tests. (Tr. Vol. 2, p. 110-112.)

55. The term "validity" describes the extent to which a candidate's performance on a test relates to his or her performance on the job. A test is "valid" if a candidate's test performance can be used to make a better prediction about how well he or she will perform on the job than might be possible without the test. (S 58.) Thus, professionals in the field of employment testing and selection often use the terms "validity" and job-relatedness" (or "valid" and "job-related") synonymously. (S 57.)*fn9

56. Validity is not an "all or nothing" concept; various tests may have different degrees of validity, and the same test may have different levels of validity for different jobs or when used in different manners. (S 59.)

57. Three types of validation strategies -- content, criterion-related and construct -- are described in the standards and guidelines followed by the employment testing profession. (S 60.)

58. A content validity study must present data showing that the content of the selection test represents important aspects of performance on the job for which the test is being used. Thus, a content validation strategy requires an evaluation of the extent to which the content of the test is adequately matched to the "content of the job" to determine whether the test measures what is important to or included within the job. A preemployment test can be judged to be content valid to the extent that it represents the contents of the job. Information about the content of the job is obtained from a job analysis study. A content validation strategy usually results in a work-sample test or some type of test that simulates the important aspects of job performance. (S 61.)

59. In a criterion-related study, performance on the test is compared with job effectiveness. A criterion-related validity study should consist of empirical data showing that the test is predictive of, or significantly correlated with, important elements of job performance. A test has criterion-related validity to the extent that performance on the test is statistically related to performance on the job. Criterion-related validity is established when an employer shows that scores on its test (even scores as basic as "pass v. fail") related in a meaningful way with some measure of job performance (i.e., a criterion). (S 62.)

60. Finally, the construct validity approach is more theoretical than content or criterion-related validity because it is necessary to establish that a construct is required for job success and that the selection device measures that same construct. The data from a construct validation study should show that the test measures the degree to which candidates have identifiable characteristics (i.e., "constructs") that are important for successful job performance. The user should show empirically that the test validly relates the constructs to the performance of critical or important work behavior(s). This often requires a criterion-related study to show that the construct is related to job performance. Thus, a construct validity approach requires both: 1) a showing that the test being validated measures a particular construct; and 2) a showing that the construct is related to job performance. (S 63.) The construct validity approach is most frequently used when it is well-established that a particular test of a given construct (e.g., reading ability) has criterion-related validity, and the researcher establishes that a different test (e.g., a new reading test) also is valid by showing that the two tests measure the same construct (reading). (S 64.)

61. In his July 2004 report, Dr. Davis describes a "research design" validation method, which involves quantifying and comparing the metabolic (or energy) costs of job tasks on the one hand and of performance on the test on the other hand. (S 65.)

62. In his July 2004 report, Dr. Davis also refers to a "threat" or "perpetrator" analysis validation method, which involves building a model linking the demands of the test to the make-up of the City's perpetrator population. (S 66.)

63. Whether a test is valid and whether a particular cutoff score or passing standard on the test corresponds to the minimum level of skills necessary to perform the job at issue successfully are two separate, though related, issues. (S 67.)

64. In the field of I/O psychology, professionally recognized methods by which cutoff scores are set appropriately include norm-referenced methods, content-related methods and criterion-related methods. (S 68.)

65. In his July 2004 report, Dr. Paul O. Davis, the City's expert, also describes a "pacing" (or "concordant"), a "research design" and a "perpetrator" (or "threat analysis") method for setting or validating cutoff scores. (S 69.)

66. The "pacing" method of setting a cutoff score, as described by Dr. Davis, involves showing a group of subject matter experts ("SMEs") - i.e., individuals who are familiar with the job at issue -- a videotape of incumbents or actors performing the test at various paces and then using a technique such as the Delphi method to determine the pace at which there is adequate agreement (or "concordance") by the SME's that the pace represents successful performance. (S 70.)

67. The "research design" method of setting a cutoff score, as described by Dr. Davis, involves selecting the level of performance on the test that requires a metabolic cost (or energy) cost that corresponds to the metabolic cost of performing job tasks. (S 71.)

68. The "perpetrator" method of setting a cutoff score, as described by Dr. Davis, involves determining the age and gender characteristics of the "perpetrator" population and selecting a level of performance on the test that corresponds to that required to apprehend some selected percentage of the perpetrators who flee/resist such that a foot pursuit and physical struggle is necessary to apprehend them. (S 72.)

Paul O. Davis, Ph.D.

69. Dr. Davis is a founder of Applied Research Associates, Inc., a research and consulting firm established in 1976. He has a doctoral degree from the University of Maryland, College of Health and Human Performance, Department of Kinesiological Sciences, where he placed major emphasis on the study of occupational fitness requirements and the quantification of work physiology. He has participated in over 60 legal proceedings as an expert witness, is certified by the American College of Sports Medicine, and has authored over 100 technical reports, manuals and articles dealing with his research on the relationship between human physical performance factors and health. (Ex. 17, p. 3.)

70. Dr. Davis was qualified at trial as an expert in the fields of exercise physiology, physical performance, physical requirements, and physical testing. Per the parties' stipulation, Dr. Davis is not qualified to provide opinion testimony in the fields of statistics, industrial/organizational psychology, testing other than physical testing, job requirements or job performance other than physical, and job analyses. (S 53.)

71. In connection with his services for the City, Dr. Davis reviewed a description of the PAT and viewed a videotape of portions of the 2000 PAT administration. On May 6, 2004 he visited the City of Erie, during which time he rode along with various officers on patrol and, in addition, interviewed the police chief and a number of officers. He was able to confirm through interviews that City of Erie officers routinely engage in strenuous physical activity in furtherance of their public safety mission. (Ex. 17, p. 5.)

72. Dr. Davis produced a July 14, 2004 "validation report," which he characterizes as "validating the obvious." It is the result of his dissemination of a questionnaire to all 200 Erie police officers, 114 of which were returned completed. The answers on the questionnaire indicate that nearly all of the responding officers had engaged in a struggle with a suspect or other person while on duty. (D 136.)

73. Dr. Davis testified at trial and his two reports (Ex. 16 and 17), as well as numerous excerpts from his deposition testimony, were admitted into evidence.

74. Boiled to its essence, Dr. Davis' opinion encompasses several propositions: (i) that the PAT which is the subject of this litigation is a valid test of the physical demands of police work; (ii) that the PAT is not stringent enough to measure the amount agility, strength and endurance necessary to match the criminals who would be pursued in real-life scenarios; and (iii) that it is both unprincipled and dangerous to impose gender-normed standards for the physical screening of police officer candidates solely for the sake of achieving gender parity in work force.

(i) Dr. Davis' Theory that the PAT is Valid

75. Dr. Davis opines that the challenged PAT used by the City of Erie is a valid test in that it measures physical abilities relevant to the successful performance of police work.

76. Specifically, Dr. Davis opines that the obstacle course portion of the PAT is content valid in that the obstacle course barriers are "exact replications" of the sorts of obstacles a police officer would commonly encounter in a foot chase. (Ex. 16, p. 3.) He therefore considers these general foot pursuit tasks as "self-evident and face valid." (Id.; Ex. 17, p. 6.))

77. Dr. Davis further opines that the push-up and sit-up portions of the PAT have construct and/or criterion-related validity. (Ex. 17, p. 4; Tr. Vol. 2, pp. 78-79.) He believes that push-ups and sit-ups as performed on the PAT test for muscular endurance and are a "crude approximation of the energy costs of a struggle." (Ex. 17, p. 4. See also id. at p. 6; Tr. Vol. 2, pp. 49-50, 84; Tr. Vol. 2, p. 78 (opining that the push-up and sit-up components have construct validity in that the metabolic demands of the muscle in performance of these evolutions involve the same muscle groups that are involved in altercations and struggles; thus they are an important construct of successful job performance).

78. He feels that the PAT appropriately utilized push-ups and sit-ups by placing them at the end of the test, following the obstacle course. ("Since this item is administered at the conclusion of the test battery, a fatigue effect will clearly degrade maximum performance. For this reason, this is an appropriate time to interject the test item, since it reasonably reflects the struggle at the conclusion of a short sprint." (Ex. 17, p. 6.))*fn10

79. Dr. Davis' theory presumes, as a fundamental proposition, that the PAT's validity can be determined by examining the validity of each component part. While he agrees that one cannot validate the PAT as a whole simply by validating one component part alone, he believes one can validate the test as a whole by separately validating each of its component parts. (Tr. Vol. 2, pp. 80-81.)

80. Dr. Davis did not perform or analyze any criterion-related validity study for the PAT as a unitary test because, he says, this would have been too costly. (Tr. Vol. 2, p. 79.) In fact, he never performed any content, criterion, or construct validity study relative to the PAT as one whole test. (Id.)

81. Dr. Davis testified that there was no real need for a full-blown validation methodology such as was used in Lanning v. SEPTA, as the PAT is a much simpler, albeit gender-disparate test. Although there was no full-blown perpetrator analysis done here as there was in Lanning, Dr. Davis feels this is not a problem. Such a study would have been prohibitively costly in his view and, he claims, would not have added any particular insight. (Tr. Vol. 2, pp. 63-64.)

82. Dr. Davis concludes that the PAT is valid "by reason of its relationship to the essential functions of the job." (Ex.16, p. 7.) The test, he believes, "contains relevant obstacles and an approximation of a minor scuffle that are as basic as one can get." (Id.) (See Ex. 17, p. 10 ("The current and past physical ability tests are valid by virtue of their relationship to the occupational requirements of the job.")) (See also Tr. Vol. 1, pp. 43-44.)

(ii) Dr. Davis' Opinion that the PAT Is Too Easy

83. Dr. Davis opines that the PAT is too easy a test in that it does not adequately measure the amount of agility, strength and endurance necessary to match the criminals who would be pursued in the real-life scenario proposed by the PAT. (Ex. 17, pp. 7, 10; Tr. Vol. 2, pp. 45-46.)

84. Among other things, Dr. Davis criticizes the decision to modify the PAT such that candidates were given the option of scaling a chain-link fence in lieu of the 6-foot wall and the option of using a crate or other scaling device. Dr. Davis views both of these modifications as an "erosion of the rigger of a selection instrument." (Ex. 16, p. 3.) In Dr. Davis' opinion, while technique and training both play a role in one's ability to scale a wall, it is "far better to take individuals who present with no difficulty in performing this task rather than those who are struggling." (Ex. 16, p. 3.) Dr. Davis believes the wall-scale is "powerful in its predictive value for the selection of applicants." (Id.)

85. Thus, Dr. Davis believes that "more is better" (i.e. a higher cut-off is more preferable) when screening for physical attributes of police work, and he recommends the City restore its use of earlier versions of the PAT. (Ex. 16, p. 3.) (See also Ex. 17, p. 7 ("By manipulating the pass rates, the City may have unknowingly set in motion that trip down the proverbial slippery slope. Short answer, there is no precise point whereby failure is guaranteed. However, we do know that there is less risk (and no additional personnel costs) in increasing standards, particularly standards that reflect the profile of the perpetrators.")) On the other hand, Dr. Davis concedes that this "more is better" approach is confined solely to the realm of physical job requirements, abilities and performance. (Tr. Vol. 2, p. 77.)

86. Dr. Davis refers to the anecdote of the 11-year-old girl passing the PAT and states this "would certainly give any citizen pause as to the requisite rigor of this screening tool." (Ex. 16, p. 3.) He believes that, if an 11 year-old girl can pass the test, then the test needs to be harder. (Tr. Vol. 2, pp. 91-92.)

87. He estimates, based on prior experience as a gym teacher, that 60-70% of his students could have passed the PAT, at the same time acknowledging that kids are clearly unfit to be police officers. This indicates to him that the PAT is missing a vital ingredient: the strength component that is clearly demonstrated in terms of grappling with, engaging and subduing a perpetrator. (Tr. Vol. 2, p. 67-68.)

88. Thus, Dr. Davis opines that the PAT is too easy because it doesn't test some physical abilities or attributes (i.e., muscular strength) that are more important to police officer performance than the skills the PAT does measure. (Tr. Vol. 2, p. 92.)

89. Dr. Davis also criticizes the PAT for its use of incumbents in setting the passing score. First, he believes that, because incumbents have tenure, they lack any incentive to excel. Consequently, he believes the data derived from this approach is "contaminated with the ambiguities of motivation." (Ex. 16, p. 5.) Second, it is erroneous, Davis believes, to assume that all incumbents perform their jobs satisfactorily. (Id. at pp. 5-6.)

90. In addition, Dr. Davis believes that officers inevitably decline in fitness and agility from the moment of their hire. "Since advancing age will inevitably have a negative impact on performance," he writes, "hiring those who are on the cusp virtually guarantees obsolescence in a fairly short period of time." (Ex. 17, p. 7.).

91. Thus, while Dr. Davis criticizes the City's use of incumbent officers in structuring the 1994 standard-setting exercise, he supports the City's decision to utilize the incumbents' mean scores -- rather than the lowest scores -- as the relevant testing standard. (See Tr. Vol. 2, p. 54-55 (given age-associated decline in performance, the use of incumbents' mean score as a cut-off does represent the minimum qualifications necessary to do the job).) Setting standards based on the poorest performing incumbents, he believes, "is a strategy for disaster" and will never allow for improvement in the workforce. (Ex. 16, p. 6; Ex. 17, p. 7.)

92. Dr. Davis believes the better practice, rather than using incumbents, is to set physical standards based on the profile of criminals who will likely be the target of police action. (Ex. 16, p. 1 ("[I]t is the criminal element that defines the mission of the law enforcement officer."); id. at p. 5 ("Better yet, the test should be an expression of success in the apprehension of criminals. The data on the criminal population supports the notion that they are younger than police officers."); Ex. 17, p. 8 ("We are not arresting each other; we are supposed to arrest the bad guys. 'What do they look like?' is the more apt question."); id. at p. 9 ("[F]itness standards need to be modeled on the basis of the threat."); see also Tr. Vol. at p. 49.)

93. In this regard, Dr. Davis analyzed the booking information for over 2,300 Erie male arrestees,*fn11 and noted that 71% of those arrested in the year or more time span of the bookings are males under age 40, which he states is the population most likely to flee the scene or resist arrest. (D 136.)

94. He posits that the typical patrol officer is already giving the perpetrator the advantage of 10 years and 15 pounds of gear in a foot pursuit. "This fact alone," he writes, "speaks to the need for above average levels of fitness." (Ex. 17, p. 9.)

95. Dr. Davis opines that, while the PAT is valid, "[t]he test only modestly approaches what an officer may reasonably be expected to do and should be revisited with the eye towards providing a more reasonable representation of police work." (Ex. 17, p. 10.)

96. For example, Dr. Davis does not believe the push-up/sit-up element of the PAT can be validly challenged as not job-related: "The expectation to perform a few push-ups and sit-ups at the conclusion of a brief sprint does not begin to approximate the physical demands of a real struggle in effecting an arrest." (Ex. 16, p. 4; see also Ex. 17, p. 6 ("[T]he minimum number of push-ups and sit-ups hardly approaches thresholds that would have some predictive power.").)

97. In this regard, Dr. Davis likens the PAT to the "big E" on the eye chart -- "necessary but insufficient to establish visual acuity." (D 136.) In other words, Dr. Davis believes the PAT as administered between 1996 and 2002 was so easy that, if a candidate could not pass it, this would necessarily indicate that the candidate was not fit enough to perform the job of police officer and the City would be at risk in hiring that individual. (Tr. Vol. 2, p. 86.)

98. He opines that the PAT "is better than no test." However, he believes that the City's use of the PAT placed it "at great risk of accepting individuals who cannot perform the rigors of the job since the test's action limits are well below those required on the job." (Ex. 17, p. 7.)

99. Nevertheless, despite his view that the PAT is too easy, Dr. Davis believes it succeeded in at least screening for the minimum qualifications necessary to perform the job of police officer. (See Tr. Vol. 2, p. 89 ("I would hate to hire without the use of at least this by way of an instrument. So that to that extent this is a business necessity to have a test at least of this difficulty."); Tr. Vol. 2, pp 45-46 ("If I were to take fault .... I do not believe that this test is stringent enough. I do believe that it meets categorically the expectation of the minimum, minimum, minimum physical standard."); Tr. Vol. 2, pp. 57-59 (opining that the PAT has "statistical noise" and "is not a very good test; it minimally, minimally meets the requirements to be a police officer," but does not make him "warm and fuzzy to believe that a person who passes is always capable of handling every event.").

100. Dr. Davis specifically opined that the PAT's use of a 90-second time limit comports with the minimum qualifications necessary ...

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