Stahl v. Board of Con'Rs of Unified Government

Page 1181

244 F.Supp.2d 1181

Delilah STAHL, Plaintiff, v. The BOARD OF COMMISSIONERS OF THE UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, Defendant.

Civil Action No. 01-2539-CM.

United States District Court, D. Kansas.

January 24, 2003.

COPYRIGHT MATERIAL OMITTED

Albert F. Kuhl, Lenexa, KS, for plaintiff.

Henry E. Couchman, Jr., Kansas City, KS, for defendant.

MEMORANDUM AND ORDER

MURGUIA, District Judge.

Plaintiff filed this action against defendant alleging gender discrimination and retaliation in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981. This matter is before the court on defendant's Motion for Summary Judgment (Doc. 21).

• Facts¹

• Creation of Special Enforcement Unit

Plaintiff has been employed by defendant as a police officer since 1981. In 1992, defendant promoted plaintiff to the rank of sergeant. From October 9, 1998 to January 14, 2001, plaintiff was a supervisor in the police department's Vice and Narcotics Unit. Also within the police department during that time was the "S.C.O.R.E." Unit, which was the department's tactical, or SWAT, Unit.

Ronald Miller was appointed Chief of Police in June 2000. Shortly after his appointment, Chief Miller undertook to combine the Vice and Narcotics Unit and the S.C.O.R.E. Unit into a new unit to be called the Special Enforcement Unit (SEU). Chief Miller believed that, by combining the two units, the police department would be able to fight narcotics trafficking and illegal drugs more effectively, and more officers would be available to respond to SWAT calls. It is uncontroverted that the decision to combine the two units was not made to remove plaintiff from her position or otherwise discriminate against her. Rather, the decision was a legitimate restructuring. Chief Miller intended that officers, including sergeants, selected for the SEU would undergo tactical training and perform tactical duties, as well as vice and narcotics-related duties.

The duties of tactical officers are both physically demanding and highly stressful. Plaintiff does not controvert that sergeants in the tactical unit must be prepared to perform the duties of the officers on the team they are leading, which they may be called upon at any time. Accordingly, since the mid 1980s, defendant required its S.C.O.R.E. Unit officers, including sergeants, to pass a physical fitness test as a qualification for the job and to pass periodic physical tests to remain in the unit. Moreover, officers in the S.C.O.R.E. Unit, including sergeants, were required to participate in on-duty physical fitness training on a regular basis as part of their job description. Officers in the Vice and Narcotics Unit were not required to complete a physical fitness test, nor were those officers required to participate in physical fitness training. However, on their off time, Vice and Narcotics Unit officers could attend workouts offered by the police department.

• Physical Fitness Test

Because all officers in the SEU were expected to undergo tactical training and perform tactical duties, Chief Miller, in conjunction with the command staff, decided that successful completion of a physical fitness test also should be a qualification for the SEU. The same physical fitness test that was used for the S.C.O.R.E. Unit was selected for use for the SEU.

Plaintiff first heard in July 2000 that the Vice and Narcotics Unit and the S.C.O.R.E. Unit would be combined. Around the third week of September 2000, officers in the Vice and Narcotics Unit began discussing the possibility of a physical fitness test. At the end of September 2000, plaintiff obtained a copy of the physical fitness test that would be administered to the SEU candidates. In mid-October, plaintiff received word that a physical fitness test would be required.

During the last week of September or the first week of October, plaintiff began working out at home to prepare for the physical fitness test. Plaintiff mapped out a mile-long course around her home and began running. Plaintiff also began doing sit-ups, push-ups, back arches, sitting and reaching, jumping, and general calisthenics. Plaintiff requested to "flex" her work hours on Tuesdays and Thursdays to attend workout sessions with S.C.O.R.E. officers. Captain Rick Armstrong granted plaintiffs request.

During her prior two years as a supervisor, plaintiff did not participate in any type of regular exercise program. At the time plaintiff began preparing for the test, plaintiff considered herself 25 to 30 pounds overweight and had smoked about a pack of cigarettes a day for the past 30 years. Plaintiff continued to smoke while she was training for the physical fitness test.

Plaintiff felt she had made progress during the time she had trained. However, plaintiff felt she needed more time to get ready for the bench press and the vertical and broad jumps. At some point, plaintiff complained to Captain Armstrong, Lieutenant Douglas Hansen, and Lieutenant Joe Ward that the physical fitness test was not "female friendly" and that she needed more time to lose weight and prepare for the test. The officers encouraged plaintiff to continue working out. Plaintiff testified in her deposition that she was not treated any differently after she complained about the test.

Plaintiff felt that she did not have adequate time to prepare for the test and that her superiors should have apprised her sooner that there would be a physical fitness test. However, no other officer in the Vice and Narcotics Unit had knowledge of the test any earlier than plaintiff. Moreover, every officer in the Vice and Narcotics Unit, all of whom were male, had the same opportunity to train for the physical fitness test.

On October 30, 2000, plaintiff applied for a sergeant position in the SEU. The physical fitness test was administered to sergeant applicants on November 7, 2000. Every individual applying for sergeant took the physical fitness test on the same day and was administered the same test.

The physical fitness test consisted of eleven events: skinfold assessment, trunk flexion (sit and reach), trunk extension, bent-knee sit-ups, 12 minute run, push-ups, pull-ups, squat thrust, bench press, standing broad jump, and standing vertical leap. Applicants were required to earn an overall score of 70 percent to pass, which was determined by adding together the percentage scores on each event and dividing the number by eleven. An applicant did not have to complete every event successfully to pass the test. Rather, the applicant could skip an event as long as the overall score equaled or exceeded 70 percent. Prior to the test, plaintiff chose to skip the pull-up event. A number of male applicants also elected to skip the pull-up event.

Plaintiff scored 100 percent on the skinfold assessment and 88 percent on the trunk flexion, but received no points on the trunk extension. Plaintiff scored 82 percent on sit-ups, and also passed the pushups and squat thrust. However, plaintiff fell short on the bench press, vertical jump, and broad jump. As a result, plaintiff failed to achieve a passing score.

Other than plaintiffs own assertions, there is no evidence in the record that the males have an advantage over females in passing the physical fitness test. Plaintiff testified in her deposition that she does not know whether males have an advantage in the trunk extension. Plaintiff did not provide support for her conclusion that the vertical jump is more difficult for women, but plaintiff testified that she thinks women have shorter body mass, are more compact, and do not have the leg strength to do the push. Plaintiff admitted, however, that successfully completing the vertical jump is a matter of building leg muscles and getting in shape for it. Plaintiff also testified in her deposition that she does not know whether her inability to do the standing broad jump was due to the fact that she did not have strong legs or because she is a woman. In an affidavit filed later by plaintiff, plaintiff asserted that the test was discriminatory because: 1) the requirements were heavily weighted in favor of upper-body strength tests, 2) there is no alternative scoring for males and females in the bench press, pull-up, or push-up categories, and 3) she had not been required to maintain any level of fitness during her time in the Vice and Narcotics Unit.

At the time plaintiff took the test, she weighed 173 pounds. With respect to the bench press, an applicant was required to lift a percentage of his or her body weight. Had plaintiff weighed 140 to 149 pounds, plaintiff would have been required to lift 115 pounds. At the time of the test, plaintiff bench pressed 120 pounds, 10 pounds short of the required weight. Plaintiff believes that she would have passed those events she failed had she been given more time to train. Plaintiff admits, however, that the bench press, vertical jump, and broad jump would have been easier for her had she not been 30 pounds overweight.

Plaintiff testified that Captain Armstrong allowed Officer Mike Whitfield to do his last five push-ups lying on the floor between each push-up. Plaintiff claims this was preferential treatment to a male officer. Officer Whitfield was an applicant for canine officer, not sergeant. There is no other evidence in the record, nor is plaintiff aware of any other occasion, where an applicant for the SEU was given an easier time on the physical fitness test than other applicants.

• Plaintiff Fails Physical Fitness Test

Plaintiff was informed that she would not be considered for sergeant in the SEU because she had failed to successfully complete the physical fitness test. Ron Lobner, Ramiro Moran, and Donald Woolley, all of whom successfully completed the physical fitness test, were selected for the sergeant positions in the SEU. Plaintiff testified that she does not know whether Chief Miller, Captain Armstrong, Lieutenant...