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Judge dismisses lawsuit of Barnstead police officer claiming fitness test bias

A federal judge has dismissed a lawsuit filed by a Barnstead police officer who argued the state police academy’s fitness test, which he failed after missing a timed run by 11 seconds, is biased against men.

But in making his order, Judge Paul Barbadoro didn’t weigh in on David Scott’s main argument – that it’s discriminatory for a woman his age to get nearly three minutes longer for the test than he did – and instead threw out his case simply because Scott filed it against the wrong group.

The state of New Hampshire and the Police Standards and Training Council, the parties Scott filed his claim against, aren’t his employers and can’t be sued under the law Scott contended they broke, Barbadoro said.

Scott yesterday said he agreed. But he argued that the parties are labor organizations, groups he said control things such as hours and conditions of employment and can be sued under the law. Scott has filed a motion asking the judge to reconsider, using that argument.

The test Scott failed is required of every New Hampshire Police Academy student. Members must take a push-up, sit-up, bench press and running exam, with passing scores based on a person’s gender and age. To be a full-time officer, applicants need to be in the 50th percentile of performance based on their age and gender norm.

Scott enrolled in the police academy in 2010 after being promoted, on the condition of his future graduation, from a part-time to full-time officer in Barnstead. Scott said he tried 10 times to complete the mile-and-a-half run in the allowed time but his best score – 14 minutes and 44 seconds – was 11 seconds behind pace. He subsequently was returned to his part-time status in Barnstead.

In his lawsuit, Scott argued that all recruits should be held to the same standard, regardless of their age or gender, because all police officers must complete the same duties at work.

In a motion to dismiss the case, Senior Assistant Attorney General Nancy Smith made the argument the judge ultimately found most relevant: that Barnstead, not the state, is Scott’s employer. But she also said Scott had failed to show the police academy’s fitness test had a negative impact on either men or women.

In fact, Scott is one of only four people to not pass the exit exam in the past five years, according to the state.

Smith said yesterday that she was pleased with the judge’s order, and she added that the issue Scott raised in his motion for reconsideration is one she already addressed in her motion to dismiss. She said the labor organization category Scott believes the training council falls under actually refers to groups like unions.

She said the training council is a regulatory body and likened it to the Department of Safety, which licenses truck drivers.

The department “says if you hold a commercial driver’s license, you can only work so many hours,” Smith said. “It doesn’t make the regulator setting those standards a labor organization or a labor union under this statute.”

Scott believes otherwise and said in his motion that the training council crosses the line into a labor organization when it makes departments limit officers’ hours or terminate already employed individuals.

“I have no problem with them setting police standards like you have to be of good moral character, you can’t have a criminal background, you’ve got to have a good psychological background. . . . I even understand the physical fitness standards,” said Scott, adding the caveat that those standards are biased. “But when they go to the point where they make a phone call to the department and say you’ve got to fire him, that’s too far.”

If Barbadoro denies Scott’s motion for reconsideration, the officer said he plans to file an appeal with the First Circuit Court of Appeals in Boston.

He could also file a lawsuit against his employer, the Barnstead Police Department.

Yesterday, Scott said he’s not ruling out that possibility. But he doesn’t think it’s fair.

“Can we actually hold Barnstead accountable because they obeyed the state law?” asked Scott, who is representing himself. “If the judge is saying the state is not my employer and they set the law, now I take my employer to court and they say, ‘Gee, we didn’t make the law. We just follow it.’ What’s the judge going to say then? Who’s responsible?”

The age and gender norms used by the state were developed by the Cooper Institute, a fitness research nonprofit. The group, though, doesn’t recommend its numbers be used for hiring purposes or exit exams, agreeing with Scott that it appears to violate the Civil Rights Act of 1991.

The Cooper Institute has recommended a single-norm standard, like the one Scott is advocating, since 1991, according to Steve Farrell, a science officer at the Texas-based nonprofit. Farrell noted that roughly a third of the agencies that have adopted their norms apply them for selection standards, like New Hampshire.

Farrell said doing so has the potential to develop a more diverse workforce by allowing women to be compared only with other women of their same age rather than the entire applicant pool. (Smith made a similar point in her motion to dismiss Scott’s case.)

The state has used the norms for the police academy’s exit exam since 1992 and re-evaluates their usage regularly, said Mark Bodanza, a captain at the training council.

(Tricia L. Nadolny can be reached at 369-3306 or
tnadolny@cmonitor.com or on Twitter at @tricia_nadolny.)

If the requirements are different for male and females, that's not equality. End of story.

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