Cherie Easterling v. State

Decision Date05 May 2011
Docket NumberCivil Action No. 3:08–CV–0826 (JCH).
Citation783 F.Supp.2d 323,94 Empl. Prac. Dec. P 44170,112 Fair Empl.Prac.Cas. (BNA) 344
PartiesCherie EASTERLING, Plaintiff,v.STATE OF CONNECTICUT, Department of Correction, Defendant.
CourtU.S. District Court — District of Connecticut

OPINION TEXT STARTS HERE

Adam T. Klein, Samuel Miller, Outten & Golden, New York, NY, Michael T. Kirkpatrick, Public Citizen Litigation Group, Washington, DC, Seth M. Marnin, Outten & Golden, Westport, CT, for Plaintiff.Margaret Q. Chapple, Maria C. Rodriguez, Attorney General's Office Employment Rights, Hartford, CT, for Defendant.

RULING RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 106) AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 113)

JANET C. HALL, District Judge.I. INTRODUCTION

In 2004, the plaintiff, Cherie Easterling, applied to work as a Correction Officer (“CO”) with the defendant, State of Connecticut Department of Correction (the DOC). Easterling brings this action on behalf of herself and a class of similarly situated applicants against the DOC, asserting that the DOC violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Title VII), by using an employment practice—a discriminatory physical fitness test—that caused a disparate impact on the basis of sex, and that was neither job related nor consistent with business necessity.

On January 4, 2010, the court certified this suit as a class action. See Ruling Re: Class Cert. (Doc. No. 75). Easterling has moved for summary judgment on the issue of liability (Doc. No. 106), and the DOC filed a cross-motion for summary judgment (Doc. No. 113).

II. FACTUAL BACKGROUND 1

The DOC operates eighteen correctional facilities throughout Connecticut. See Facilities Page, Mot. for Class Cert., Doc. No. 57, Ex. 5. The DOC employs COs who are responsible for the confinement, safety, control, and monitoring of inmates in these correctional facilities, and for the security of the facilities. Defendant's Local Rule 56(a)(1) Statement (“Def.'s 56(a)(1)), ¶ 2. In order to obtain a position as a CO within one of these DOC facilities, a candidate must possess a high school diploma or G.E.D., be at least twenty-one years of age, be in good health, have a good educational or work record, and be free from felony convictions. Plaintiff's Corrected Local Rule 56(a)(1) Statement (“Pl.'s 56(a)(1)), Ex. 1 (2004 correction officer job posting), Ex. 2 (2006 correction officer job posting). Applicants who meet these criteria first take a written examination. Pl.'s 56(a)(1), ¶ 2. If an applicant passes the written exam, the applicant then takes a physical fitness test (“PFT”). Pl.'s 56(a)(1), ¶ 4. Only if an applicant passes both the written and physical examinations is his or her application turned over to the DOC for interviews, background checks, and medical examinations. Pl.'s 56(a)(1), ¶ 8, Exs. 1, 2.

The physical fitness test consists of four parts. Def.'s 56(a)(1), ¶ 23. Failing any single part causes the candidate to fail the entire test. Id. In 2004 and 2006, the physical fitness test included: (1) a sit and reach test; (2) a one-minute sit-up test; (3) a one-minute push-up test; and (4) a timed 1.5 mile run. Id. The minimum standards for candidates varied by gender and age. For example, a female candidate in the 21–29 age group was required to complete 1.5 mile run in 14 minutes, 49 seconds. Pl.'s 56(a)(1), Ex. 4 (physical fitness score sheet). The corresponding standard for a male candidate in the 20–29 age group was 12 minutes, 25 seconds. Id. These standards are set to the 40th percentile of performance for each age/gender cohort, as calculated by the Cooper Institute. Pl.'s 56(a)(1), ¶¶ 17, 19. The passing time for each age and gender combination was:

+------------------------------------+
                ¦Gender/Age  ¦21–29¦30–39¦40–49¦50+  ¦
                +------------+-----+-----+-----+-----¦
                ¦Male        ¦12:25¦12:51¦13:46¦14:54¦
                +------------+-----+-----+-----+-----¦
                ¦Female      ¦14:49¦15:25¦16:12¦17:14¦
                +------------------------------------+
                

Pl.'s 56(a)(1), Physical Fitness Score Sheet, Ex. 4.

The 1.5 mile timed run was administered as part of the PFT in October 2004 and June 2006; a make-up exam with a 1.5 mile timed run was also administered in October 2006. Pl.'s 56(a)(1), ¶ 13; Defendant's Local Rule 56(a)(2) Statement (in Response to Plaintiff's Corrected Local Rule 56(a)(1) Statement) (“Def.'s 56(a)(2)), ¶ 13; Def.'s 56(a)(1), ¶¶ 34–35. For the October 2006 administration of the 1.5 mile run, applicants were either individuals who failed the June 2006 administration or individuals who opted to train for several months before attempting the timed run. Def.'s 56(a)(1), ¶¶ 34–35. For each of these tests, the DOC used the Cooper Institute 40th percentile marks as minimum standards. Pl.'s 56(a)(1), ¶¶ 17–19.

In mid–2004, Cherie Easterling, a resident of Bloomfield, Connecticut, applied for employment as a Correction Officer with the DOC. Pl.'s 56(a)(1), ¶ 1. Easterling took and passed the written exam on August 25, 2004. Pl.'s 56(a)(1), ¶ 3. In October 2004, Easterling took the physical fitness test. Pl.'s 56(a)(1), ¶¶ 5–6. Although Easterling passed the ‘sit and reach test,’ the ‘one-minute sit-up test,’ and the ‘one-minute push-up test,’ she failed the 1.5 mile run portion of the test. Id. As a result of failing the 1.5 mile run test, Easterling was precluded from advancing in the DOC selection process. Pl.'s 56(a)(1), ¶ 7.

A. Statistical Evidence Related to Disparate Impact
1. Gender Disparity in Percentage of CO Applicants Passing the 1.5 Mile Test

On each of these three occasions that the 1.5 mile test was administered, women passed the test at a substantially lower percentage than men.

In 2004, 148 women were eligible to participate in the 1.5 mile run portion of the PFT. Pl.'s 56(a)(1), ¶ 36, Ex. 7. Ninety-three (93) of those women, or 62.8%, passed the 1.5 mile run component of the PFT. Id. Seven hundred forty (740) men completed the 1.5 mile run, and 607 passed, for a passage rate of 82.0%. Id. The ratio of the female passage rate to the male passage rate was 76.6%.

In June 2006, 172 women took the 1.5 mile run portion of the PFT. Pl.'s 56(a)(1), ¶ 38, Ex. 8. One hundred one (101) of those women, or 58.7%, passed the 1.5 mile run component of the PFT. Id. Eight hundred twenty-six (826) men completed the 1.5 mile run, and 690 passed, for a passage rate of 83.5%. Id. The ratio of the female passage rate to the male passage rate was 70.3%.

In October 2006, the DOC offered a make-up administration of the PFT for applicants who had failed the June 2006 PFT and applicants who opted to train for additional time before attempting the PFT. Pl.'s 56(a)(1), ¶ 40, Ex. 9. That month, seventy-eight (78) women took the 1.5 mile run portion of the PFT. Twenty-seven (27) of those women, or 34.6%, passed the 1.5 mile run component of the PFT. Id. Two hundred fifty-eight (258) men completed the 1.5 mile run, and 137 passed, for a passage rate of 53.1 %. Id. The ratio of the female passage rate to the male passage rate was 65.2%.

Over the three administrations of the PFT at issue in this lawsuit, 398 women participated in the 1.5 mile run portion of the PFT, and 221 women passed, for a passage rate of 55.5%. For the same three administrations, 1,824 men participated in the 1.5 mile run portion of the PFT, and 1,434 men passed, for a passage rate of 78.6%. Overall, the ratio of the female passage rate to the male passage rate was 70.6%.

The plaintiff's statistical expert, Dr. Alexander Vekker, opined that the 2004, June 2006, and September 2006 administrations of the 1.5 mile run component of the PFT each yielded statistically significant gender disparities in outcomes. Pl.'s 56(a)(1), Ex. 24, at 1. Using the statistical method known as “Fisher's Exact Test,” 2 Dr. Vekker estimated that the probability of the gender difference observed for the 2004 administration of the 1.5 mile run occurring by chance was less than one in 1.5 million, or 4.9 standard deviations. Id. Dr. Vekker estimated that the probability of the gender difference observed for the June 2006 administration occurring by chance was less than one in 145 billion, or 6 standard deviations. Id. Finally, Dr. Vekker estimated that the probability of the gender difference observed for the September 2006 administration occurring by chance was less than one in 64,000, or 4.2 standard deviations. Id. Dr. Vekker estimated that 71 additional women would have passed the 1.5 mile run over the three administrations of the PFT, if the run had been gender neutral. Id.

The DOC admits that female CO applicants failed the 1.5 mile run component of the PFT at a higher rate than male CO applicants. Def.'s 56(a)(2), ¶ 42. In its Local Rule 56(a)(2) Statement, the DOC argues that the disparity “did not always rise to [the] level of adverse impact.” Id. However, the DOC does not offer any evidence in support of this argument. The defendant's sole expert on statistical disparities, Dr. Harold Brull, concluded that the 1.5 mile run event had an adverse impact on female CO applicants. Pl.'s 56(a)(1), Deposition of Harold Brull, Ex. 19, at 63.3 In his expert report, Dr. Brull concluded that “it is obvious, upon even the most cursory review of the applicant test data, that female applicants for the position of Correction Officer have a slightly more difficult time completing the event than their male counterparts.” Pl.'s 56(a)(1), Report of Harold P. Brull, Ex. 26, at 3. Dr. Brull also “checked the math” in Dr. Vekker's report and concluded that Dr. Vekker's calculations of the probability of the observed disparity occurring by chance were accurate. Pl.'s 56(a)(1), Deposition of Harold Brull, Ex. 19, at 63–64.

2. Gender Disparity When Positions Other than CO Are Considered

DOC has presented evidence that when the results of the 1.5 mile run are pooled for the positions of State Trooper Trainee, Public Safety Trainee, and CO, the observed disparity between men...

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    ...officer applicants to complete a 1.5–mile run in 12 minutes had a disparate impact on women); Easterling v. State of Connecticut, 783 F.Supp.2d 323 (D.Conn.2011) (finding a gender-normed physical fitness test violated Title VII where there was evidence that women had a lower passage rate th......
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