By Jon Lender
The Hartford Courant
HARTFORD, Con. — The head of a correction officers’ union is blasting an agreement to pay $3 million to settle a class-action federal lawsuit that claims the Department of Correction discriminated against female applicants by requiring they run 1.5-miles within about 15 minutes.
Moises Padilla, president of the Cheshire Correctional Complex Employees Local 387, said the state’s decision to settle the 2008 case — rather than go to trial to uphold its standards for candidates — is a surrender that makes the correction officers look like “second class” personnel compared with the state police and other first-responders.
The state police and other first-responders still require the 1.5-mile run as part of their physical fitness test. But the 1.5- mile run was dropped from the correction officers’ test in 2007, and in its place since then has been a much-shorter 300-meter run – which women applicants in their 20s need to finish in 75 seconds or less.
State legislators and a federal judge in May and July gave preliminary approval to the $3-million settlement, which could be made final after another court hearing in September. But Padilla said he and other officers of his union local oopose the settlement and say the original fitness test shouldn’t have been discarded.
The proposed settlement will just invite similar discrimination claims, perhaps against the state police or even municipalities, he said.
“How this proposal made its way through the legislature without being detected until after the fact, is perplexing to say the least,” Padilla said. “Obviously, the Attorney General’s Office capitulated on the issue long ago and in doing so, put the DOC in an unfortunate and tenuous position. There is no doubt in my mind that other state agencies will be targeted by ‘similarly situated’ individuals in other instances once the financial impact of this settlement is made public, if they have not been subjected to similar action already. Instead of the 1.5 mile run, stay tuned for litigation relative to the other…components of the examination process. No entity will be immune from this type of litigation, state and municipal alike.”
However, a spokeswoman for state Attorney General George Jepsen said the proposed settlement is the best option to end the case that has dragged on since 2008 — with key interim rulings going against the state along the way.
“We disagree with Mr. Padilla’s characterization. He apparently misunderstands the legal concepts relevant to this case, and he declined to participate when offered the opportunity to meet and discuss the settlement,” said Jaclyn Falkowski, Jepsen’s spokeswoman. “The state moved forward with settlement only after a federal judge ruled that the 1.5 mile run violated [the federal Civil rights Act} Title VII’s disparate impact provision. An appeal would have likely been unsuccessful, and the next step in court proceedings would have been a damages hearing, likely exposing the state to a much greater financial liability.”
“We are pleased with the court’s preliminary approval” of the settlement,” Falkowski said. “We believe this settlement represents a mutually agreeable resolution to a long-standing matter and avoids several more years of costly litigation for all parties involved. The state Department of Correction is committed to hiring qualified females as correction officers and the settlement does afford the opportunity for class members who successfully complete the selection process to obtain priority hiring status.”
The original plaintiff in the case, Cherie Easterling of Bloomfield, applied in 2004 to become a correction officer and passed the written test and all parts of the physical test except the 1.5-mile run.
The time standards for completing the run were staggered by age and gender. For example, a man aged between 21 and 29 had to run 1.5 miles in 12 minutes, 25 seconds. or less. A woman the same age had to run the same distance in 14 minutes, 49 seconds. The required times increased with an applicant’s age.
The lawsuit grew into a class action involving the 124 women who applied to be correction officers in 2004 and 2006 and passed all the testing requirements except the 1.5-mile run.
One of the plaintiffs’ key arguments was that women failed the 1.5-mile run test in greater percentages than men did; they said the disparity in failure rates showed that the time requirement for women was tougher than for men, and therefore discriminatory.
The plaintiffs also argued successfully that the state had not proved the validity of a 1.5-mile run as a standard for work in prisons as a correctional officer. In 2011, U.S. District Court Judge Janet C. Hall ruled that the run was not predictive of performance as a corrections officer.
At the time, one of the lawyers for the plaintiffs said, “We have always found it absurd that any applicant who could not run 1.5 miles at a certain speed was automatically rejected right then and there, regardless of how well qualified they were in all other respects…There’s no place in any Connecticut prison where anyone could run nearly that far or any evidence that that level of fitness is required for guards.”
Of the $3-million settlement, about $1.8 million would go to the women who are members of the class of plaintiffs — or about $15,000 each. Easterling would receive an additional $10,000 as the original plaintiff. The amount is based on a formula for lost wages that the plaintiffs would have received if they had not failed the 1.5-mile run test, and had proceeded through the rest of the hiring process at the normal success rate.
About $1.2 million would go to the lawyers. The plaintiffs were represented by the New York law firm of Outten & Golden, and Public Citizen Litigation Group of Washington, D.C.
The state also has agreed to a “priority hiring” arrangement for women among the 124 who failed as correction officer candidates because of the 1.5-mile run in 2004 and 2006. If they qualify under the revised process, up to 28 of them will in effect jump to the head of the line over other applicants for correction officer positions.
Padilla, whose local is part of the American Federation of State, County and Municipal Employees, said the proposed settlement of the suit is inconsistent with efforts by his union and the state to improve the health of Department of Correction workers.
“In my opinion, the Attorney General’s predisposition as it pertains to this specific lawsuit has significantly impacted our collective efforts when dealing with these type of issues and has diminished our agency’s standing within the law enforcement community,’' he said. “Basically, [it is] categorizing our department as substandard in the law enforcement sphere.”
Department of Correction spokeswoman Karen Martucci said the proposed settlement was the result of decisions in the case, adding that the agency “has no intention of discriminating in any of our practices.” She also said the job of correction officer is important to public safety and is performed under often-difficult circumstances, and the agency believes the officers’ image should not be “tarnished” by actions required to resolve the case.