1

 References to the trial transcript are indicated by the volume number which

corresponds to the day of trial, i.e., Tr. Vol. 1 (3/7/05 [Doc. # 78], Tr. Vol. 2 (3/8/05 [Doc.

# 79]), Tr. Vol. 3 (3/9/05 [Doc. # 80]), Tr. Vol. 4 (3/10/05 [Doc. # 81]). References to

trial exhibits are as follows: Tr. Ex. ____ (Plaintiff’s trial exhibits are denoted by letters

while Defendant’s trial exhibits are denoted by numbers.). References to the parties’

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, )

)

Plaintiff, ) Civil Action No. 04-4 Erie

v. )

)

CITY OF ERIE, PENNSYLVANIA, )

)

Defendant. )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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:

I. FINDINGS OF FACT

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 twoyear period. (Tr. Vol. 1, pp. 159-63.)1

Case 1:04-cv-00004-SJM Document 86 Filed 12/13/05 Page 1 of 73
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. ___.”

2

 At the time the City developed and began using the PAT, the Civil Service

Commission was, at least de facto, the final decision-making body regarding what

physical agility test would be given to entry-level police officer applicants. (S 1.)

2

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 pullups 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 Commission2 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

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3

 Defendant’s proposed findings of fact and conclusions of law [Docket No. 68]

are misnumbered such that numbers 118-121 are used twice for different paragraphs. 

Our reference is to the second of Defendant’s proposed findings number 118, found at

unnumbered page 5.

3

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.)3

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

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4

 As originally developed by Lt. Bowers, the PAT obstacle course/run included

two events (rather than one) intended to simulate climbing through a window. This was

later modified. (S 22.)

5 The PAT administered by the City between 1994 and 2002 also included a

separate trigger-pull component performed after, and only if, the applicant successfully

completed the other three components of the test. Because the trigger-pull event was

not part of the timed portion of the PAT, the parties did not consider it to be part of the

challenged PAT for purposes of this case.

4

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 fourfoot wall which applicants were required to climb over.4

 (Tr. Ex. AA (Requests for

Admission) and BB (Responses), Nos. 47, 48, 50, 53.)5

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

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5

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

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6

demanded from active officers.” (S 30.)

19. Lt. Bowers chose 15 seconds as the time periods to be used for the pushups 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

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6

In 1994, approximately 10-15% of the City’s police officers were members of

the SWAT team. (S 38.)

7

the SWAT team.6 (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 thirtysecond 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 pushups 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

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8

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

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9

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.)

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7

 Chief Bowers testified that, based on his observations, males had more

difficulty with sit-ups while females had more difficulty with push-ups. By increasing the

number of required sit-ups and decreasing the number of required push-ups, Bowers

felt the test would be more equitable toward women. (Tr. Vol. 1, pp. 178-180.) The net

effect of this change, in Chief Bowers’ view, was to reduce the importance of upper

body strength in passing the PAT.

10

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 pushup/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 13.7 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.

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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:

Year Female Passing Rate Male Passing Rate

1996 4.3% 53.7%

1998 14.3% 72.2%

2000 11.8% 77.3%

2002 30.4% 84.7%

1996-2002

Combined

12.9% 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

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8 The City of Erie has since discontinued its use of the PAT challenged by the

United States in this lawsuit. (S 48.) Instead, the City will require that applicants for

entry-level police officer positions already be certified as law enforcement officers by

the Commonwealth of Pennsylvania (i.e., obtain Act 120 certification). In order to enter

the police academy, an individual must take the physical agility test mandated by

Pennsylvania’s Municipal Police Officer Education and Training Commission

(MPOETC) and perform each of the components of the test at the 30th percentile of the

individual’s gender and age group. In order to complete academy training and obtain

Act 120 certification, an individual must take the same MPOETC test and perform each

of the components of the test at the 50th percentile of the individual’s gender and age

group. Before hiring any applicant listed on an eligibility list, the City will henceforth

require that the applicant retake the MPOETC test and score at the 30% percentile. 

(See P 46, 47.)

12

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 2002.8 (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. 

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9

 Consistent with the practice of the parties and their expert witnesses at trial, the

term “validity,” when used in these findings, means job-relatedness, and “valid means

job-related.”

13

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.) 9

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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

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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

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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.)

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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

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10 Nevertheless, at trial Dr. Davis testified that the City’s decision to place the

push-ups/sit-ups components at the beginning of the PAT in 2002 is of little moment

and that, whether they were at the beginning or end, “the concept is essentially the

same.” (Tr. Vol. 2, p. 61.) 

18

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.))10

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

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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

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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

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11 Females comprised 22% of the total. (Ex. 17, p. 9.)

21

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,11 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

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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

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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 to do the job. (Tr. Vol. 2, p. 53.)

101. He feels that the videotape is “very compelling visually” as to the

reasonableness of using the 90-second cut-off. He feels that the possibility of false

negatives is very remote. (Tr. Vol. 2, p. 60.)

102. In essence, Dr. Davis’ opinion seems to be that the PAT could create

false positives (i.e., individuals who are actually incapable of meeting the physical

demands of police officer work might pass the PAT), but it probably does not create

false negatives (i.e., any individual who failed the PAT ipso facto could not meet the

physical demands of police work).

103. He believes that any reasonably motivated person of either gender should

be able to pass the PAT. (Tr. Vol. 2, p. 68 (The test is “not out of reach of the

physically inclined.”).) 

104. He further opines that there is little likelihood for the substitution of an

alternative approach that would have a lesser adverse impact. (Ex. 16, p. 7.) “The

City has attempted to ‘dummy down’ this test and should return to its original version of

the PAT. This slippery slope of tweaking the results to meet some social agenda

benefits no one.” (Id.) (“Arguing in favor of reducing standards to achieve some

agenda is contrary to the needs and interests of the citizens of Erie.” (Ex. 17, p. 9.))

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(iii) Dr. Davis’ Opinion That the Test Should Not Be Gender Normed

105. Dr. Davis believes that if different testing standards are employed for

different people (e.g., gender-norming tests), then by definition the testing standards

cannot be job-related, although they might possess differing degrees of jobrelatedness. He believes that “you’re undermining your position with regards to a

defensible standard when in fact you have multiple standards for the same job.” (Tr.

Vol. 2, p. 83.)

106. While there may be wide-spread use of gender-norming standards in law

enforcement with respect to calisthenics, etc., Dr. Davis believes that the more

defensible approach is to identify what the “action limits” or requirements of the job are,

independent of the officer’s age and gender. He claims that the current trend is moving

toward single standards. (Tr. Vol. 2, pp. 96-97.)

107. Furthermore, Dr. Davis takes strong exception to the idea of coercing law

enforcement entities to adopt double standards for men and women in the area of

physical fitness and/or elevating characteristics such as “integrity” and “sensitivity” over

the critical fitness and agility necessary to perform police officer work. To do so, he

believes, compromises law enforcement’s standards and endangers the safety of police

officers and the general public. Dr. Davis opines that “[t]o force the city to accept subpar employees benefits no one. It is only the most misguided that somehow believes

that placing unqualified people in harm’s way to be [sic] a societal victory.” (Ex. 16, p.

6.)

108. He writes in his May 10, 2004 report that “[t]he wide range of physical

tasks to be performed within law enforcement have no age or gender bias; that is, the

job is not defined by the individual performing the job.” (Tr. Ex. 16, p. 1.) He further

writes that, “Whenever there is a physical ability test that has any degree of sensitivity

and specificity, the pass rates will be in favor of males,” and “[a]ttempting to adjust

these rates to approximate an abstract definition of equality is fallacious.” (Ex. 16, p. 4.) 

He believes that “[t]he job is the job” and does not change as a consequence of who is

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performing it. (Ex. 17, p. 10; see also Tr. Vol. 2, p. 66.)

David Jones, Ph.D.

109. David Jones, Ph.D., is President of Growth Ventures, Inc., a human

resources consulting firm with expertise in the design, validation and administration of

employee assessment and selection systems. He holds a Ph.D. in the field of

industrial/ organizational psychology and has practiced in that field for nearly 30 years. 

He has executed projects to design employee assessment and selection systems for

both public and private sector organizations. (Ex. O, ¶ 1.)

110. Dr. Jones was qualified at trial as an expert in the field of industrial/

organizational psychology, including employment testing and selection, job analysis,

physical and non-physical job requirements, and employment test validation. (Tr. Vol.

2, p. 180.)

111. Dr. Jones testified at trial and his expert report was admitted into evidence

as Ex. O. In addition, a rebuttal report co-authored by Dr. Jones and Leaetta Hough,

Ph.D., was admitted into evidence as Ex. P. 

112. Dr. Jones rendered two central opinions: first, that the PAT does not

show evidence of content, criterion-related, or construct validity sufficient to justify its

use in screening entry-level police officer candidates; second, that the cut-off score

utilized by the City is well above that which would be defined as the minimum standard

of performance. (Ex. O, ¶¶ 8, 32-33; Tr. Vol. 2, p. 109.)

113. Dr. Jones testified that the Principles and Standards apply to the

development and validation of physical tests. (Tr. Vol. 2, pp. 110-12.) Thus, exercise

physiologists typically draw upon APA Standards and SIOP Principles in determining

whether a physical test is valid. (Tr. Vol. 2, p. 112.)

114. Dr. Jones opines that Dr. Davis’ reports bear no resemblance to validity

studies described in APA Standards and SIOP Principles. In essence, Dr. Jones views

Dr. Davis’ reports as an expression of professional opinion unaccompanied by any type

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of validity study. (Tr. Vol. 2, pp. 112-13.)

115. According to Dr. Jones, “content validity” is an appropriate strategy when

the content of the test truly represents the relevant job functions. The term “face

validity” as used by Dr. Davis is not a term recognized by APA Standards or SIOP

Principles. (Tr. Vol. 2, pp. 127-28.)

116. Dr. Jones feels that it is not possible under professionally recognized

standards to have criterion-related validity in the absence of empirical data

demonstrating the relationship between test performance and job performance. As Dr.

Jones explains, if one does not possess such data, one does not have a criterionrelated study, and it would not be acceptable under professional standards to opine on

the criterion-validity of a test based solely on professional judgment without supporting

data. (Tr. Vol. 2, p. 123.)

117. According to Dr. Jones, construct validity studies are a bigger and more

theoretical undertaking; one must look at how a whole set of tests or a whole series of

performance information fit together. (Tr. Vol. 2, p. 124.)

118. In his preliminary report, Dr. Jones writes:

17. None of the information provided to me indicates that the

Bureau’s physical agility test has been held to content,

criterion-related, or construct validation standards. While

various changes have been made over successive

administrations of the test, none of the work underlying

these changes has been executed or documented in a

manner consistent with professional practice.

18. Other than personal anecdote from the test’s designers,

there is no foundation on which to demonstrate the validity

of the City’s physical agility test, its individual components,

its scoring and qualifying standards, or its use in producing

overall applicant eligibility lists. There is no information to

show that individuals who perform well on the test perform

similarly on the job.

19. In fact, no professionally sound job analysis has been conducted. 

There is no information to document whether each aspect of the

job the City apparently attempts to simulate with the test are

actually performed on the job. Nor is any information available

regarding how frequently they might be performed, the specific

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physical capabilities that underlie their performance, or the degree

to which new recruits can be trained to perform such activities once

hired.

20. The City has made no attempt to assess the reliability with

which the test is scored. For example, no test-retest

analysis has been undertaken to determine the likelihood

that candidates scoring within a given range of the cut-off

score might succeed on a re-administration of the test, after

a brief rest period. Given the test’s degree of adverse

impact, it would be reasonable for the City to determine the

tool’s test-retest reliability, to identify its standard error of

measurement, and to offer retest opportunities to candidates

scoring within a range of one to two standard errors of

measurement.

21. No information has been provided to indicate that the City

has sought out other, equally valid selection procedures that

might produce less adverse impact on the employment

opportunities of female applicants.

(Ex. O, ¶¶ 17-21.)

119. Dr. Jones thus opines that neither the process of initially designing the

PAT nor the steps taken to modify it over the years were in conformity with professional

standards. (Ex. O, ¶¶ 23-27, 28-31.) 

120. Fundamentally, Dr. Jones opines that, because the PAT was administered

as a unitary test (i.e., the pass/fail decision was made based on the candidate’s total

performance of the test as a whole), it needs to be validated as a unitary test. (Tr. Vol.

2, pp. 128-29.)

121. He explains that the PAT, as administered, is really a different test for

every person who takes it because the amount of time required to complete each

sequential segment in the test affects the amount of time the candidate has left to

complete the remaining segments. (Tr. Vol. 2, p. 130.) 

122. Dr. Jones views this as significant because, in his words, “you have to

know what you’re measuring in order to do a thorough study on whether a test has any

validity or not. ... If I run the obstacle course in 30 seconds, I have 60 seconds left [to

complete the required push-ups and sit-ups.] If you run it in 60 seconds, you have only

30 [seconds]. At that point we’re now taking two different tests. And potentially

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measuring two different things from that point forward.” (Tr. Vol. 2, pp. 130-31.)

123. One critical problem, in Dr. Jones’ opinion, is that the PAT standards were

established in one fashion (i.e., as separately timed component parts) but administered

in a different fashion (i.e., as a unitary test): “It’s putting together something that has

the chance of being correct when it’s designed, but then putting it into place and making

decisions in a completely different fashion. “ These differences in administrative format

can make a significant difference in the case of test measurement, according to Dr.

Jones. (Tr. Vol. 2, p. 131.) 

124. Dr. Jones further opines that, even assuming it would be acceptable to

demonstrate validity of the PAT by validating each component part separately, such

validity has not been demonstrated here. (Tr. Vol. 2, p. 133.)

125. Dr. Jones concedes that the obstacle course component of the PAT

appears to have a degree of content validity; however, he finds no evidence of validity

for the push-up and sit-up components. (Tr. Vol. 2, pp. 133-37.)

126. As to the sit-ups component, Dr. Jones testified that he had never in his

career seen evidence or studies showing that sit-ups relate to job performance for

police officers. (Tr. Vol. 2, p. 138.)

127. He believes it may be possible to construct a study which would evaluate

the criterion-related validity vel non of sit-ups and push-ups; however, no such evidence

has been gathered in this case. Moreover, two factors – the fact that an 11 year-old girl

passed the PAT while incumbent SWAT team members ostensibly failed it – lower Dr.

Jones’ expectation that the sit-ups and push-ups components of the PAT would have

criterion-related validity under a proper analysis. (Tr. Vol. 2, pp. 158-60.)

128. Dr. Jones also disagrees with Dr. Davis’ opinion that the PAT’s passing

standards were set too low. In fact, Dr. Jones opines that the standard was set far

above that which would represent the minimum level of acceptable performance. (Ex.

O, ¶¶ 32-33.)

129. Dr. Jones observes in his initial report:

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32. The only systematic study of how current, effectively

performing police officers might score on the test was

undertaken in 1994. In that study, the performance of 19

current police volunteer officers was used to set a qualifying

score on the test: the average score of the 19 officers on

each component. While helpful in linking the qualifying

score required of applicants to the performance of actual

police officers, the “average officer” standard selected would

have resulted in “disqualifying” approximately one-half of the

current police participants.”

33. Further, the “random sample” of officers on [sic] whom the

passing requirement was established was not random. 

Originally, fifty Traffic Division officers were randomly

sampled from a total list of 134 officers to participate in the

process, with the objective of obtaining cooperation from at

least 30. Only 19 officers volunteered and participated. 

This sample is not “random.” There is no basis for

determining whether it reflected physical capabilities near

the top, bottom or middle of the full officer force. It should

be noted that some of the participants were actually

members of the Bureaus [sic] SWAT team, a unit that has

elevated physical ability requirements. ...

(Ex. O, ¶¶ 32-33 (internal citation omitted).

130. Dr. Jones further points out that, under the PAT standards as originally

implemented in 1994, only four of the 19 incumbent test-takers – including only 2 of 8

SWAT team members – would have met all three criteria for a passing score (i.e., total

time of 90 seconds or less on the PAT, 17 push-ups and 9 sit-ups). Under the

standards as implemented in 2002, when the requisite number of push-ups was

lowered from 17 to 13 and the requisite number of sit-ups was raised from 9 to 13, only

2 of 19 incumbents would have passed the PAT. (Tr. Vol. 2, pp. 151-52.)

131. Dr. Jones considers this percentage passing rate “awfully low” considering

that the City has represented that all 19 of the incumbent test-takers were adequately

performing their jobs. (Tr. Vol. 2, p. 152.) 

132. Dr. Jones asserts this is all the more true in light of the fact that the

incumbent test-takers were strictly volunteers who, in his opinion, tend to be more

motivated and typically better performers. (Tr. Vol. 2, pp. 152-53.)

133. Dr. Jones also observed that, with regard to the three female police

officers who took and passed the PAT during its administration, their test scores reflect

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that they either passed by one second, failed by one second, or passed by virtue of a 5-

second grace period. (Tr. Vol. 2, pp. 154-55.)

134. Based on this evidence, Dr. Jones rejects Dr. Davis’ “Big E” theory that

the PAT is too easy. Dr. Jones concludes that this theory is belied by the fact that only

three female officers (all admittedly competent) only barely passed the PAT, 30% of the

males who took it failed, and a significant portion of the incumbents who set the testtaking standards would have received failing scores. (Tr. Vol. 2, p. 157.)

135. Dr. Jones opines that, when conducting employment testing, there is a

danger in setting the cut-off score too high on a single component, such as physical

ability: namely, an employer risks eliminating those officers who might have an overall

better mix of qualities and skills. Otherwise stated, Dr. Jones believes that the “job” is

bigger than its physical requirements and, if the physical requirements are set too high,

the employer misses its opportunity to add that blend of other relevant skills and

abilities (such as cognitive abilities, job knowledge, personal character, etc.) into the

mix. (Tr. Vol. 2, pp. 155-56.)

136. With regard to the evidence of the 11 year-old girl who passed the PAT,

Dr. Jones believes this factor does not necessarily mean that the PAT as such is too

easy; in his opinion it more likely demonstrates that the PAT simply does not measure

what the City intends it to measure. He agrees with Dr. Davis that the test probably

should incorporate other components that an 11 year-old likely would not pass. (Tr.

Vol. 2, p. 156.)

137. In sum, Dr. Jones believes that the PAT is an invalid test because some

of its constituent parts (i.e., the sit-ups and push-ups) lack validity. (Tr. Vol. 2, pp. 157-

58.) In fact, Dr. Jones concludes that the City’s methodology in designing, modifying,

and scoring the PAT over time “fail[s] to incorporate even the most basis principles of

content, criterion-related, or construct validation research” and that “[t]echnical

documentation associated with the test design effort is nonexistent.” (Ex. O, ¶ 35.)

138. Dr. Jones considers the procedures used by the City in scoring the PAT

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and in reaching its ultimate conclusions about applicants’ qualifications to be “seriously

flawed” in that they “bear no demonstrable relationship to the level of performance

required for successful performance on the job.” He further asserts that the scoring

system “gives no consideration to the reliability of the test scores or to the degree that

changes in the test’s procedures over time have made the original standards-setting

exercise obsolete.” (Ex. O, ¶ 35.)

139. In Dr. Jones’ opinion, an invalid test like the PAT should not be used

because it is ultimately a waste of time and money and because it may produce

unintended consequences, such as inadvertently screening out one group of job

applicants over another. (Tr. Vol. 2, pp. 141-42.)

140. Finally, Dr. Jones notes that, “[w]hile the City’s attempts to reduce the

level of adverse impact associated with the test are clear, they have been unrelated to

any systematic analysis of the entry-level job, its physical requirements, or the

existence of potentially equally valid, but less adverse alternative screening procedures.

(Ex. O,¶35.)

William McArdle, Ph.D.

141. William McArdle has a Ph.D. in work physiology and is Professor Emeritus

in the Department of Family, Nutrition, and Exercise Science at Queens College in New

York City, where he has taught since 1965. He has authored or co-authored more than

50 research articles dealing with environmental physiology, exercise training, and the

assessment of diverse components of physical fitness as well as several text-books

relating to exercise physiology. (Ex. V, p. 1.)

142. Dr. McArdle was qualified at trial as an expert in the field of exercise

physiology. The parties have stipulated that Dr. McArdle is qualified to provide opinion

testimony in the fields of exercise physiology, physical performance, physical

requirements, and physical testing. (S 54.)

143. At trial, Dr. McArdle provided opinion testimony and his two reports were

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admitted into evidence as Exhibits V and W. 

144. He was retained by the United States to assess the PAT’s potential,

because of physiological differences between the sexes, to cause an adverse impact

on female candidates. (Ex. V, p. 1.)

145. Dr. McArdle opines that the agility run portion of the PAT represents a

predominantly sprint-power or anaerobic form of exercise, as opposed to a more

prolonged effort requiring energy from aerobic metabolism. Dr. McArdle notes that,

while women generally perform less well than men in both anaerobic and aerobic

physical tasks, the gender differences are “disproportionately magnified” in anaerobic

tasks of relatively short duration. Thus, according to Dr. McArdle, “the overall test

duration [of the PAT] with its high demand on anaerobic power capacity exacerbates

the adverse impact on women.” (Ex. V, p. 2.)

146. Dr. McArdle notes that sit-ups and push-ups, to the extent they are used

at all in the field of exercise physiology, are typically used to measure aspects of an

individual’s overall physical fitness. Moreover, tests of physical fitness use genderspecific standards in order to account for well-established physiological differences

between men and women. (Ex. V, pp. 3-4.) Dr. McArdle therefore concludes that, to

the extent the sit-up/ push-up portion of the PAT is used to measure candidates’

physical fitness levels, it is inappropriate to use the same absolute performance

requirements for both males and females. (Ex. V, p. 4.)

147. Due to physiological differences in upper-body strength, Dr. McArdle

opines that the PAT’s push-up component “would very likely disproportionately

eliminate female candidates, even if the male and female candidates possessed the

same general fitness level.” (Ex. V, p. 5.)

148. With regard to sit-ups, Dr. McArdle states that sit-ups do not reflect lower

body muscular strength as the designers of the PAT believed. According to Dr.

McArdle, “[t]he sit-up only assesses the endurance of the abdominal musculature. 

Considerable data exist to indicate gender differences, on average, [favoring males] in

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sit-up performances.” Thus, Dr. McArdle concludes, the PAT’s requirement that male

and female candidates perform the same number of sit-ups would “likely disadvantage

female candidates.” (Ex. V, p. 5.)

149. Dr. McArdle concludes in his original report:

Based on my professional opinion as an exercise physiologist, the

PAT’s overall demands on sprint-power (anaerobic) physical capacity, its

reliance on upper-body muscle strength, and its failure to recognize wellestablished gender differences in measures of physical fitness magnify

performance differences between men and women. The sit-up, wall

climb, and push-up components have the greatest negative impact on a

woman’s chances for selection.

(Ex. V, p. 6.)

150. In his rebuttal report, Dr. McArdle disagrees with Dr. Davis’ conclusion

that the PAT is like the “Big E” on an eye chart – so easy that if any candidate who fails

the test necessarily lacks the physical qualifications to be a police officer. (Ex. W, p. 3.) 

On the contrary, Dr. McArdle opined that the PAT’s format – particularly where the situp/push-up component was placed at the end of the testing sequence – requires an

“all-out physical effort” that represents a “predominantly sprint-power or anaerobic form

of exercise, precisely the type used to produce exhaustion in exercise physiology

laboratories.” (Ex. W, pp. 3-4.) (See also Tr. Vol. 3, pp. 89-90.) He points out that

almost 90% of the women taking the PAT failed it; 25-30% of the males failed; Officer

Raszkowski (a former state champion in the 2-mile run) barely passed the test, and 4 of

19 incumbents who participated in the standard-setting exercise would have failed it. 

(Ex. W, pp. 3-4; Tr. Vol. 3, pp. 90-91.) Dr. McArdle opines that “[t]he failure rate of

applicants and incumbents on the PAT certainly indicates a difficulty level much greater

than reading the top line of an eye chart.” (Ex. W, p. 4.)

151. Dr. McArdle does not believe that Dr. Davis’ “Big E” theory is supported by

the fact that an 11-year old female gymnast reportedly passed the PAT. Dr. McArdle

points out that “[y]oung adolescent gymnasts, both male and female, typically possess

an exceptionally high level of athletic prowess and physical fitness” and receive

“specific training” which “includes vaulting and jumping maneuvers that would contribute

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greatly to success on the PAT.” (Ex. W, p. 4; see also Tr. Vol. 3, pp. 91-92.)

152. Dr. McArdle disagrees with Dr. Davis to the extent Dr. Davis suggests that

failure to properly self-condition (because of lack of motivation and/or poor preparation)

is the fundamental reason why women generally perform more poorly than men on the

PAT. Dr. McArdle believes that gender-specific differences between the sexes

(including differences in body fat levels, hemoglobin concentration, muscular strength,

and anaerobic and aerobic capacities) contribute dramatically to differences between

the sexes in physiologic and performance capacities. (Ex. W, pp. 3, 4-5.) Thus, the

fact that women do not perform as well as men on a test like the PAT does not indicate

that they are less fit than or lack the similar motivation of their male counterparts. Dr.

McArdle opines, for example, that it would be “ingenuous to consider that a woman who

wins a marathon in a time 15% slower than a male counterpart is in some way ‘less fit’

or ‘lazier.’” (Ex. W, pp. 5-6.)

153. Dr. McArdle agrees that physiological differences between the genders do

affect job performance in physical tests, but not to the extent reflected on the PAT

scores because police work is highly skilled and involves complex direction of variables. 

(Tr. Vol. 3, p. 95.)

154. Dr. McArdle disagrees with Dr. Davis’ assumption that it is necessary to

set the PAT cut-off score at a level considerably above the minimum requirement in

order to account for inevitable age-related deficiencies in physical performance. Dr.

McArdle asserts that there is research clearly indicating that loss of fitness is not an

inevitable consequence of aging, particularly from young adulthood into middle age and

depends more on lifestyle alterations that reduce physical activity than to biologic aging

per se. (Ex. W, pp 3, 6; Tr. Vol. 3, p. 96.) Thus, Dr. McArdle maintains that “to select

police officer candidates on the basis of ‘more is better’ so as to counter some

anticipated aging effect fails to account for the behavioral effects on physical fitness”

and “discriminates against the person with a lower (but acceptable) level of physical

performance, yet whose lifestyle maintains this level throughout a career.” (Ex. W, p.

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12 Dr. McArdle explained that, because of physiological difference between the

sexes, women have to work harder in order to perform the same number of push-ups

as their male counterparts. Consequently, if a woman and man both run the obstacle

course in 60 seconds and then complete 17 push-ups, it can be inferred that the male

was more fatigued by the run than the female. (Tr. Vol. III, p. 86.)

35

6.)

155. Dr. McArdle also criticizes Dr. Davis for ignoring the fact that physical

performance of applicants may improve after hiring due to instruction and training on

techniques for performing certain physical tasks. (Ex. W, pp. 3, 6.)

156. Dr. McArdle considers it “unjustified” from an exercise physiology point of

view “to inflate a cut-score above the minimum requirement on the assumption that all

individuals will lose considerable physical fitness as they progress in their careers and

to ignore the fact that performance of job related tasks will improve with training.” (Ex.

W, pp. 6-7.) Such a position, Dr. McArdle states, is “simply not supported by the

professional literature.” (Id.)

157. Dr. McArdle disagrees with Dr. Davis’ conclusion that the push-ups and

sit-ups components of the PAT measure muscular endurance or that they are a useful

measurement of an individual’s ability to restrain a perpetrator. (Tr. Vol. 3, pp. 79, 100.) 

He states that, when properly administered, push-up and sit-up tests “represent general

physical fitness items that purport to measure the endurance of the muscles specifically

activated in those movements.” (Ex. W, p. 7.) Dr. McArdle represents that typical

physical fitness testing, as recognized by the American College of Sports Medicine,

requires the individual to perform as many push-ups/ sit-ups as possible within a oneminute time frame or until exhaustion with no time constraint at all. He further states

that push-ups should not be linked to other events, and the format for women is

typically modified, requiring them to push-up from the knees.12 (Ex. W, p. 7, Tr. Vol. 3,

pp. 80-83.)

158. Dr. McArdle asserts that the push-ups and sit-ups as performed on the

PAT – i.e., for approximately 15-second periods – provides no information on the

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endurance of the muscles involved in these activities or the ability to subdue and control

a perpetrator. (Ex. W, p. 3; Tr. Vol. 3, pp. 79, 100, 125.) Dr. McArdle knows of no

physical fitness test that infers muscular endurance utilizing as brief and variable a time

period for sit-ups and push-ups as that utilized in the PAT. (Ex. W, pp. 7-8.) According

to Dr. McArdle, it is not clear exactly what the PAT’s sit-up/push-up components

measure. The approximately 15-second time limits imposed by the PAT for the sit-up

and push-up components is more a test of speed or power, depending on the amount

of time each individual would have left himself to complete those components; however,

it is not a test of endurance, nor does it represent any kind of standard measurement in

the field of exercise physiology. A test of such short duration is not typically utilized to

infer strength. (Tr. Vol. 3, pp. 81-84.)

159. Dr. McArdle represents that he is aware of no professional literature

relating the ability to perform 9 sit-ups and/or 17 push-ups in a 15-second time frame

(or any other number in any other time period) to the ability to subdue or restrain a

perpetrator. “This claim from Dr. Davis,” according to Dr. McArdle, “seems to emanate

from a ‘Just believe me, I’m an expert’ point of view, without any objective data to

support the claim.” (Ex. W, p. 3.) Thus, Dr. McArdle concludes that Dr. Davis’ claim

that one’s ability to perform sit-ups and push-ups directly reflects ability to successfully

overcome and/or restrain a combatant is not supported by empirical data. (Ex. W, p. 8.)

160. Indeed, Dr. McArdle considers it “naive” to believe that, just because the

same muscle are activated in one physical activity versus another, performance

capabilities become interchangeable. “Such logic implies that the person who lifts the

most weights in the weight room will be the best shot-putter, high jumper, boxer,

wrestler, or football player.” (Ex. W, p. 9.) “This is not the case,” Dr. McArdle explains,

“because each of these sports, as with self-defense and restraint activities performed

by police officers, requires use of muscles in highly specific and neural-controlled and

learned movement patterns, which are not dictated simply by one’s sit-up and push-up

ability.” (Id.) This is the principle of “exercise specificity” – to wit, an individual must

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transpose his strength into the particular skilled activity at issue. (Tr. Vol. 3, pp. 100-

02.)

161. Dr. McArdle concludes that there is no evidence to support the proposition

that the PAT’s 90-second cut-off score corresponds to a level of physical ability at or

below the minimum physical fitness level required to adequately perform as an entrylevel police officer for the City of Erie. (Ex. W, p. 10.)

Bernard Siskin, Ph.D.

162. Bernard Siskin holds a Ph.D. in statistics with a minor in econometrics

from the Wharton School of the University of Pennsylvania and is former Chair of the

Department of Statistics of Temple University. (Ex. R, p. 1) Since receiving his Ph.D.,

he has specialized in the application of statistics to the analysis of employment

practices and has been retained by numerous governmental and private organizations

in that capacity. He has published numerous books and papers in his field, including

articles on the role of statistics in the analysis of employment discrimination issues. He

is currently the Director and Head of the Labor Practices Unit of LECG, LLC, in

Philadelphia, Pennsylvania. (Ex. S, ¶ 1.)

163. Dr. Siskin was retained by the United States to provide an expert opinion

as to whether statistical theory and evidence support Dr. Davis’ claims that the PAT is

valid and whether the passing score was below the minimum level of physical skills

required to do the job. (Ex. S, ¶ 3.)

164. Dr. Siskin is qualified to provide opinion testimony in the field of statistics

and the application of statistics to employment practices and employment discrimination

issues. (S 56.) He testified for the United States, and his expert report was admitted

into evidence as Ex. S. 

165. As set forth in his report of December 30, 2004, Dr. Siskin takes issue

with Dr. Davis’s assertion that the City’s modifications of the PAT between 1996 and

2002, which have had the effect of “[r]educing the passing criteria [i.e. “dummying

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down” the test (see Ex. 16, p. 7)] does not ‘invalidate’ the test per se, but ... certainly

reduces the sensitivity and specificity” of the PAT. (See Ex. 17, p. 7.) Dr. Siskin

believes that, on the contrary, this statement by Dr. Davis concerning sensitivity and

specificity supports a finding that the PAT is invalid rather than valid. (See Ex. S, ¶ 5.)

166. Dr. Siskin explains in his report that “sensitivity” refers to the percent of

true negatives indicated by a test, while “specificity” refers to the percent of true

positives indicated by a test. (Ex. S, p. 3.) Sensitivity and specificity are thus

mathematically inverse to one another – e.g., lowering the cut-off score on a valid test

will increase sensitivity but will decrease specificity, while raising the cut-off score will

decrease sensitivity and increase specificity. Dr. Siskin therefore concludes that, in

deciding where to set the cutoff score on a test that has some validity, the necessary

trade-off between sensitivity and specificity should be considered. (Ex. S, p. 4.)

167. According to Dr. Siskin, if a test has significant “statistical noise” such that

there is a low level of sensitivity and specificity (i.e, significant amounts of false

positives and false negatives), then that test has little or no validity. (Ex. S, p. 4.) Thus,

“[t]o the extent that Dr. Davis is of the opinion that the PAT has ‘a lot of noise,’ then

both the sensitivity and the specificity fall and the test becomes similar to random

selection and is deemed invalid.” (Ex. S, p. 5.)

168. Dr. Siskin testified that it is acceptable to validate a test as a whole by

validating each component part separately if, and only if, two conditions are met: (1)

the components of the test must be combined in such a way that they are structurally

independent” – i.e., an applicant’s performance on one component must not be affected

by his or her performance on any other component(s); and (2) the components must

not exhibit “multi-collinearity,” which, as Dr. Siskin explained, means that the

components must be statistically independent, not correlated with each other. Stated

simply, Dr. Siskin maintains that combining a valid test with a valid test does not

necessarily produce a valid test unless these two conditions are met. (Tr. Vol. 3, pp.

150-52.)

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169. Dr. Siskin testified that the components of the PAT fail to satisfy either

condition. (Tr. Vol. 3, p. 151-55, 169-70, 203-04; see also Ex. T-1, T-2, T-3.)

170. First, Dr. Siskin believes that the PAT components cannot be analyzed

individually because they do not have structural independence: that is, they do not

stand alone as separate, individual tests. Using Trial Exhibit T-1, Dr. Siskin

demonstrated how a candidate’s performance on the obstacle course run would

determine the amount of time within which he or she would have to perform the

subsequent components. Similarly, the length of time needed to complete the pushups portion of the PAT would affect how much time the candidate would have left to

complete the sit-ups portion. (Tr. Vol. 3, pp. 151-52, Ex. T-1.) 

171. Second, Dr. Siskin testified that, to the extent the City identified any

statistical evidence of validity for any push-ups test, that evidence indicates that the

components of the PAT are not statistically independent, but instead exhibit multicollinearity. Specifically, Dr. Siskin testified that the only statistical evidence of validity

for any push-ups test produced by the City consisted of the report of a study Dr. Davis

conducted in 1988 of law enforcement officers in Anne Arundel County, Maryland. 

According to Dr. Siskin, that study shows only that the Anne Arundel push-ups test was

a significant predictor of success at climbing a six-foot barrier. (Tr. Vol. 3, p. 169.)

172. Dr. Siskin testified that this case presents an example of multi-collinearity: 

i.e., to the extent there is any evidence that a push-ups test would be valid as a standalone test (i.e. to predict a candidate’s likely success in surmounting a wall/barrier), the

PAT’s push-ups component would not be statistically independent of the obstacle

course/run, which already includes a six-foot barrier and thus directly tests the

candidate’s ability as to that task. As Dr. Siskin explained, individuals who successfully

climbed the wall during the PAT’s obstacle course/run but who did not successfully

complete the PAT’s push-ups component (and, therefore, are presumed unable to

climb the wall) would be false negatives (i.e, incorrect predictions), and these false

negatives would fall disproportionately to females. Thus, whatever validity the wallCase 1:04-cv-00004-SJM Document 86 Filed 12/13/05 Page 39 of 73
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climb obstacle might have standing alone would be reduced or eliminated by the

addition of the push-ups test. (Tr. Vol. 3, pp.152-56, 158-69, 169-170, 203-04; Ex. S,

¶¶ 26-33,35; Ex. T-2 through T-9.)

173. Dr. Siskin further opines that Dr. Davis is incorrect to the extent he

suggests that increasing the passing score on the PAT will necessarily improve the

overall performance of the City’s police force. Dr. Siskin believes that whether an

increase in the cut-off score will increase or decrease overall police force performance

depends upon a number of factors, including the presence of other equally and more

important job-relevant abilities. (Ex. S, ¶ 5.) Dr. Siskin explained that, assuming the

PAT were a valid test, using a lower cut-off score would not necessarily equate to

lowering the standards for police performance and using a higher cut-off score would

not necessarily improve performance. Dr. Siskin asserts that there is a tradeoff: by

increasing the requirements on the physical score, one necessarily downgrades the

effectiveness on non-physical test scores, thereby making the non-physical skills less

influential. Whether this results in a better or worse overall police force depends on

where the cut-off is established and, thus, how this tradeoff is handled. (Tr. Vol. 3, pp.

171-72.) Otherwise stated, increasing the cut-off score only makes sense, according to

Dr. Siskin, if it eliminates those candidates who would not be able to do the job

regardless of their other skills. (Tr. Vol. 3, p. 172.)

174. Dr. Siskin testified that there is no statistical evidence (i.e., no criterionrelated validity studies or supporting statistical evidence) allowing one to conclude that

the PAT as a whole is a valid predictor of police performance or the physical aspects

thereof. (Tr. Vol. 3, pp. 147-48.)

175. Dr. Siskin further opines that there is no justification, from a statistical

stand-point, for the pass/fail cut-off score utilized by the City on the PAT. (Ex. S, ¶ 5.) 

He concludes that the data presented does not support the use of the 90-second cut-off

as being the minimum acceptable score. On the contrary, Dr. Siskin finds that the 90-

second passing score is too high a standard based upon the methodology used by the

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City. (Tr. Vol. 3, pp. 149-50.)

176. Dr. Siskin asserts that the City’s standard-setting exercise (i.e. using the

19 incumbent officers) was unacceptable from a statistical standpoint. First, there were

no measurements to establish how adequately those incumbents were performing their

jobs. According to Dr. Siskin, this means that the City needed to perform an alternative

type of norming study which required the City to first determine what percentage of the

City’s entire police force was not performing the job adequately from a physical

standpoint (which the City did not do); then, the City would need a random sampling of

incumbents to take the test and it could then adjust the cut-off score accordingly, using

a standard deviation. Dr. Siskin pointed out that, not only did the City fail to produce

any estimation of the overall adequacy of its police force (from a physical task

standpoint), but it also lacked a true random sampling of incumbent officers to

participate in the standard-setting exercise. Dr. Siskin concludes that the sampling

used here of 19 incumbents was tainted by the fact that it was based on volunteers,

who are usually better performers. (Tr. Vol. 3, pp. 177-80.)

177. In Dr. Siskin’s opinion, the significant volunteer bias tainting the City’s

standard setting exercise is shown by the fact that 8 of the 19 volunteers were

members of the City’s SWAT team, who generally have to maintain a higher level of

fitness. (Tr. Vol. 3, p. 185-86.)

178. Dr. Siskin also notes that, when the performance of SWAT team

members is discounted, the evidence shows that the non-SWAT incumbent volunteers

performed nearly as well. Thus, the inclusion of the SWAT team members among the

19 incumbents did not dramatically affect the average scores achieved in the standardsetting exercise. Dr. Siskin views this fact as further evidence of the volunteer bias

which infected the standard setting exercise. He theorizes that the non-SWAT

incumbents performed nearly as high as the SWAT team members because the nonSWAT incumbents (being volunteers) were generally high performers by nature. (Tr.

Vol. 3, pp. 185-86.)

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179. Dr. Siskin opines that, from a statistical viewpoint, the percentage of

incumbents that would have failed the PAT is too high to suggest validity. (Tr. Vol. 3,

pp. 189-90, Ex. T-11.) 

180. He further opines that the use of volunteers in the standard setting

exercise makes the PAT invalid, absent adjustments that would take the effects of

volunteerism into account. (Tr. Vol. 3, pp. 194-95.)

181. Dr. Siskin explained that using a cut-off score of 1 standard deviation

below the mean over time does not decrease the performance of the police force in

terms of physical tasks, but rather increases it. (Tr. Vol. 3, p. 182.)

182. Finally, Dr. Siskin opines that the City’s utilization of females is well below

that of the police forces in Philadelphia, Pittsburgh, and Harrisburg. (Ex. S, ¶ 5.)

C. The Court’s Credibility Findings

183. As a general proposition, the Court accepts as credible the testimony

presented by the City’s lay witnesses, most of whom are City police officers who

testified about the history of the PAT, their own experiences taking the test, and/or their

own personal views about the PAT’s relevance vis-a-vis their own experiences as police

officers. However, to the extent these officers proffered their own personal opinions

about the usefulness, validity, or legality of the PAT as an employment screening

device, the Court finds the testimony irrelevant, as that is more properly a subject for

expert opinion and, ultimately, a determination to be made by this Court.

184. As a further general proposition the Court credits the testimony of the

expert witnesses presented by the United States. To the extent their testimony

contradicted that of Dr. Davis, the City’s expert, the Court credits the United States’

expert witnesses over Dr. Davis. 

185. The Court finds that, while Dr. Davis is certainly well qualified to provide

opinion testimony in the field of exercise physiology, in this particular case his opinions

were not well supported by empirical evidence or persuasive analysis. Accordingly, the

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Court declines to accept his opinions concerning the validity and usefulness of the PAT,

as set forth in more detail below.

1. Principles of I/O Psychology Have Relevance in this Case

186. The Court finds that the Principles and Standards utilized in the field of

Industrial/Organizational Psychology and discussed by Dr. Jones have relevance in this

case for purposes of our determination whether the PAT, as administered between

1996 and 2002, was job-related and consistent with business necessity.

187. Dr. Davis acknowledged that the American College of Sports Medicine

(ACSM), an authoritative body in the field of exercise physiology, is presently initiating

an action to produce its own set of principles and guidelines, but none have been

established as yet. (Tr. Vol. 2, p. 73.) Thus, Dr. Davis’ own profession has no published

standards for the development, use or evaluation of employment tests.

188. Because no standards have yet been published by the ACSM, the

exercise physiology profession commonly borrows the standards utilized by the

industrial/organizational psychology profession. (Tr. Vol. 2, pp. 73, 112.) 

189. Indeed, Dr. Davis claimed that his expert reports, setting forth his opinions

and conclusions in this case, complied with the Principles and Standards. (Tr. Vol. 2, p.

73.)

190. Despite Dr. Davis’ representation that professionals in his field do not

defer to the Society of Industrial/Organizational Psychologists or their Principles or

Standards in conducting employment testing (see Tr. Vol. 2, p. 94), the Court is

satisfied that the Principles and Standards have relevance in this case, particularly in

the absence of other controlling testing standards in the field of exercise physiology.

2. The PAT Must Be Validated as a Unitary Test

191. The Court finds that the PAT, as administered by the City during the

challenged time period, was a unitary test, since the passing score consisted of but one

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13 Conversely, in years when the push-up/ sit-up components preceded the

obstacle course run, the amount of time taken to complete the requisite push-ups and

sit-ups would affect the amount of time the candidate would have to complete the

obstacle course run.

44

requirement – completion of the entire test within a 90-second period (95 seconds in

1998).

192. In previous proceedings, the City has conceded that the PAT as a whole

resulted in a disparate impact against females. The City did not argue that any of the

PAT’s components was a separate employment practice with respect to which the

United States was required to prove disparate impact. (See Def.’s Br. in Resp. to Pl.’s

Mot. for Summ. Judg. [Doc. # 36] at p. 3 (Dr. Siskin’s “assertion of statistically

significant gender disparity in the City of Erie’s PAT is not in dispute.”).) Since the

“employment practice” in question which the City conceded, and this Court found, had a

disparate impact was the use of the PAT as a single test, it follows that the City must

prove that the PAT, as one test, was job-related and consistent with business necessity. 

193. The component parts of the PAT cannot be validated independently

because they are not structurally independent. That is to say, a candidate’s

performance on the obstacle course run clearly affects the candidate’s performance on

the subsequent components.13 Similarly, the length of time necessary to complete the

push-ups determines how much time the candidate would have to complete the sit-ups

portion. As an example, a candidate who takes 50 seconds to complete the obstacle

course/run then has 40 seconds to complete the required numbers of push-ups and situps, while a candidate who takes 70 seconds to finish the obstacle course/run has only

20 seconds for the push-ups and sit-ups. Similarly, how much of the 20 (or 40)

seconds the candidate would have left to complete the required number of sit-ups

depends upon how long the candidate took to complete the push-ups.

194. Thus, if each component of the PAT were to be considered separately,

the “passing standard” would be different for every candidate who took the PAT, and it

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45

would therefore be unclear exactly what the City was attempting to justify as job-related

and consistent with business necessity.

195. The Court therefore credits the opinions of Dr. Jones and Dr. Siskin who

stated that, because of the way the PAT was administered to police officer candidates

and the way it was used to make hiring decisions (i.e., as a single, unitary test), it must

be validated as a unitary test. The Court declines to credit Dr. Davis’ opinion that the

PAT can be validated by validating each component part individually as if each were a

stand-alone test.

3. The City Has Not Proved That the PAT as One Test is Valid.

196. The Court finds that the City has not proved that the PAT is valid as a

unitary test in that it conducted no validation study on the PAT as a single test and Dr.

Davis’ unsupported opinions do not establish the requisite validity.

197. In setting the 90-second passing standard, the City did not perform or

consider any professional analysis of the job tasks and duties of the City’s police officer

position or of the knowledge, skills or abilities required for successful performance in

that position. (Ex. AA and BB, Request No. 76 and Response thereto.)

198. In determining the passing standard it would use on the PAT, the City did

not perform or consider any validity study or analysis of the relationship between

performance on the PAT and job performance. (Ex. AA and BB, Request No. 76 and

Response thereto.)

199. Specifically, in setting the PAT passing standard, the City did not

determine whether performing the PAT in 90 seconds corresponds to the minimum

level of ability that is required for successful performance as a police officer. (Tr. Vol. 1,

pp. 189-90.)

200. Rather, the City has stipulated that the representatives of the City involved

in deciding to use 90 seconds as the passing standard for the PAT did so because they

believed that the City would be requiring a “medium” or “average” level of physical

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46

ability, and that seemed “fair” and “the best way to go.” (S 44.)

201. Dr. Davis performed virtually no research or analyses supporting his

opinions about the PAT’s validity, with the exception of a survey relating to only one of

the three components of the PAT (the obstacle course/run). 

202. Dr. Davis did not do a formal analysis of the PAT passing standard using

the content, construct or criterion-related method. (S 82.)

203. Dr. Davis did not conduct a formal “research design” study to validate the

PAT, nor did he conduct a “perpetrator” or “threat” analysis to validate the PAT. (S 75,

76.) Thus, while Dr. Davis suggested additional methods for establishing evidence of

the PAT’s validity, he never followed through on conducting any analysis under these

methods. (See Ex. O, ¶¶ 45-50.)

204. In sum, Dr. Davis never conducted any validation study on the PAT as a

unitary test.

205. Instead, relying on his education and experience, and utilizing what he

termed a “common sense model” (see Tr. Vol. 2, pp. 36-37), Dr. Davis concluded that

the test as a whole was manifestly content valid as to the obstacle course portion of the

PAT and criterion and/or construct-valid as to the total time limit and muscular

endurance measured by the push-ups and sit-ups. (S 82; see also Tr. Vol. 2, pp. 58. (“I

trust my life experiences and my eyes probably far more than my academic training.”).)

206. To the extent Dr. Davis claims that his opinion is based on his

“experience,” however, he has not identified any specific experience that could form a

sufficient basis for that opinion. The City has stipulated that Dr. Davis has never

validated, used or recommended a push-ups or sit-ups test like that incorporated in the

PAT (i.e., a test of 15-seconds or similarly short duration), nor is he aware of any other

organization that has ever used a test like the PAT. (See generally S 73-82.) 

207. Dr. Davis’ “Big E” theory assumes that the PAT validly measures an ability

– including, apparently, muscular endurance and/or “fatigue resistence” – that is

required for the job of police officer. Thus, Dr. Davis assumes one of the facts that Title

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VII requires the City to prove, to wit, that the PAT is valid. His opinion in this regard is

not supported by any analysis or research and fails to establish that the PAT as a single

test is valid. (See Ex. P, ¶ 152; see also Davis Depo. (11/17/04-11/18/04) at pp. 199-

201 (stating that the “best evidence” that applicants who cannot do 17 push-ups in 15

seconds and 9 sit-ups in 15 seconds cannot successfully perform the police officer job

is his “opinion that a person who couldn’t minimally do this has a fairly poor prognosis of

being a successful police officer.”); id. at 197-198 (defining the terms “sensitivity” and

“specificity”).

208. Indeed, at times, Dr. Davis’ testimony about the PAT was somewhat selfcontradictory. Despite professing that the PAT has validity in screening out unqualified

candidates, Dr. Davis acknowledged that it may not have strong predictive value. (See

Tr. Vol. 2, pp. 88-89 (citing Dr. Davis’ deposition testimony that, because the PAT is so

easy, it really lacks strong predictive power).) In fact, in his deposition, Dr. Davis opined

that, “If the test is so incredibly insensitive to allow an 11-year old girl to pass it, it hardly

rises to the definition of a valid test.” (Tr. Vol. 2, pp. 91-92.)

209. During his rebuttal testimony, after this Court had received testimony from

the United States’ experts explaining why the PAT must be validated as a single test,

Dr. Davis did testify that the “entire” PAT measures “fatigue” or “resistence to fatigue.” 

Thus, according to Dr. Davis, the PAT as a whole measures an individual’s ability to

perform a “standardized” or “fixed” amount of work within 90 seconds, the theory

apparently being that those who cannot do the amount of “work” necessary to complete

the PAT within 90 seconds lack the physical ability to perform the job. (See generally

Tr. Vol. 4, pp. 7-9.)

210. This theory is, in essence, what Dr. Davis calls a “research design”

approach to validity. The parties have stipulated, and this Court finds, that a research

design validation involves quantifying and comparing the metabolic (or energy) costs of

job tasks on the one hand and of test performance on the other. (S 65.)

211. However, as previously noted, Dr. Davis did not conduct a research

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48

design study on the PAT. Specifically, Dr. Davis never quantified how much work a

police officer has to be able to do in 90 seconds to perform the job or any job tasks

successfully. Nor did Dr. Davis establish how 17 push-ups and 9 sit-ups (or the

obstacle course run) related to that amount of work. He never quantified the amount of

work used in what he termed the “metric” of a push-up or a sit-up or the obstacle course

run. (see S 73-74 (Dr. Davis did not quantify the metabolic costs of any City of Erie

police officer job tasks, nor did he quantify the metabolic costs of the PAT or any of its

components).)

212. Dr. Davis’ fatigue theory does not address or answer why “push-ups” and

“sit-ups” – as opposed to some other exercise – are the appropriate “metric” to measure

energy costs of the job and why it is appropriate to demand 17 push-ups and 9 sit-ups

as opposed to some other number. In short, Dr. Davis provided no evidence to support

a finding that the ability to do the amount of work involved in the PAT in 90 seconds

corresponds to the minimum level necessary to perform the police officer job

successfully. 

213. Although this Court fully acknowledges Dr. Davis’ impressive credentials

and extensive experience in the field of exercise physiology, in this particular case, his

opinion cannot be credited and is insufficient to establish that the PAT is a valid test. 

214. No one else has ever tried to validate the Erie PAT as a unitary test, nor

has any other entity ever used it. (Tr. Vol. 2, p. 79.)

215. The parties’ frequent reference to the fact that an 11-year old girl passed

the PAT also does not indicate that the PAT, as a unitary test, is valid. The Court

accepts as credible the testimony of Dr. McArdle that it is unsurprising that an 11 yearold girl, particularly a petite girl trained in gymnastics, would be able to pass the PAT,

given the fact that gymnasts are commonly trained in jumping and vaulting exercises,

generally have lean body mass, and typically possess a significant amount of strength

relative to their size. (Tr. Vol. 3, pp. 91-92; Ex. W, p. 4.)

216. In fact, the Court finds it noteworthy that Lt. Les Fetterman, a SWAT team

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49

member whom the City stipulates performs his job adequately (S 39), and whom the

City contends is “one of [its] largest and strongest officers,” (see D 120), failed to

perform 17 push-ups in 15 seconds (he performed only 13) during the 1994 standard

setting exercise, despite admittedly putting forth his best effort. (Ex. 11, Tr. Vol. 1, pp.

139-40.)

217. Accordingly, the fact that an 11-year old gymnast reportedly passed the

PAT does not prove that the PAT is an easy test for an adult, even an adult who

possesses the physical abilities necessary to successfully perform the job of police

officer. Rather, the Court credits Dr. Jones’ opinion that this is more likely an indication

that the PAT simply does not test all areas relevant to the physical work of police

officers. This, in turn further supports the Court’s finding that the PAT, as a unitary test,

lacks validity.

218. The Court has viewed and considered the videotape (Def.’s Ex. 1) taken

during portions of the 2000 administration of the PAT. However, the Court finds that

the videotape possesses little evidentiary value for purposes of the ultimate issues in

this case. 

219. The videotape did permit the Court to visualize the obstacle course and

push-up/ sit-up components. Furthermore, the tape did anecdotally demonstrate that

there were officer candidates present at the 2000 administration of the PAT who

appeared manifestly unfit to meet the rigors of the test. Nevertheless, the videotape is

not a complete record of the 2000 test because only certain individuals were selected to

be videotaped. Perforce, it cannot and does not prove that no candidates who took and

failed the 2000 PAT were otherwise minimally qualified to perform the job of police

officer for the City of Erie.

220. More importantly, we have already found that the Principles and

Standards set forth above are relevant to this inquiry, and the videotape produced by

the City provides no information to the Court as to whether the PAT is valid or

consistent with business necessity under the Principles and Standards.

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50

221. In summary, because the City has not established that the PAT as one

test is valid, the City has failed to prove that the PAT is job related for the position in

question, and the United States is entitled to judgment in its favor on the issue of

liability. 

4. The City has not shown that each of the individual components of the PAT

would be valid if administered as a separate test.

222. Alternatively, even if the City’s piecemeal approach to validation were

appropriate – and we have specifically found it is not – the City has not shown that each

of the components of the PAT would be valid if administered as a separate test. 

223. The parties agree, as discussed above, that there are three types of

validation strategies – content, criterion-related and construct – described in the

Standards and Guidelines followed by the employment testing profession. (S 60.)

224. In addition, in his report, Dr. Davis describes two variations on these three

accepted validation approaches. Specifically, Dr. Davis described a “research design”

method, which, as noted above, involves quantifying and comparing the energy costs of

job tasks on the one hand and of performance on the test on the other, and a “threat” or

“perpetrator” analysis, which involves linking the demands of the test to the make-up of

the City’s perpetrator population. However, the City has stipulated that Dr. Davis did

not conduct either a “research design” study or a “perpetrator” analysis to validate the

PAT. (S 65-66, 71-72, 75-76.)

225. Instead, Dr. Davis asserts that the obstacle course run component of the

PAT has content validity, and the push-up/sit-up components each of criterion-related

and/or construct validity. (Tr. Vol. 2, at 78-79; Ex. 16 at p. 3; D 135.)

a. The obstacle course component of the PAT

226. The parties have stipulated that a content validity study must present data

showing that the content of the test represents important aspects of performance on the

job for which the test is being used. Thus, a content validation strategy requires an

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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. Information about the content of the job is obtained from a job

analysis study. A test can be judged to be content valid to the extent that it represents

the content of the job. 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.)

227. Dr. Davis asserts, based on his “job task analysis” survey, that the

obstacle course portion of the PAT is a content valid simulation of a foot pursuit. (Ex.

17, p. 6.)

228. Although the United States’ experts have maintained that Dr. Davis’ “job

task analysis” is flawed and does not constitute a professionally appropriate job

analysis, the United States agrees that the obstacle course portion of the PAT, if

administered as a separate test, likely would have some level of content validity,

although the United States maintains this level is unquantified and likely low. (Tr. Vol.

1, p. 165; see P 118.)

229. The Court finds that the obstacle course portion of the PAT, if

administered as a separate test, would possess some unquantified degree of content

validity. Nevertheless, this finding is insufficient to establish the PAT’s validity, or jobrelatedness, for the reasons set forth below.

b. The push-ups and sit-ups components of the PAT

230. All parties seemingly agree, and this Court finds as a matter of fact, that

the push-ups and sit-ups components of the PAT lack content validity. (See Tr. Vol. 2,

p. 78.)

i. criterion-related validity

231. The Court also finds that the push-ups and sit-ups components of the

PAT lack criterion-related validity.

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232. As the parties have stipulated, a test has criterion-related validity to the

extent that performance on the test is statistically related to performance on the job. 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.

Criterion-related validity is established when an employer shows that scores on its test

(even scores as basic as “pass v. fail”) relate in a meaningful way with some measure

of job performance (i.e, a “criterion”). (S 62.)

233. The Court credits Dr. Jones’ testimony that, to establish criterion-related

validity one collects data, consisting of both test (predictor) scores and job performance

(criterion) measures, and then performs statistical analyses on the data to show that

there is a relationship between the predictor and the criterion such that individuals who

have higher test scores tend to have higher levels of performance and individuals who

have lower test scores tend to have lower levels of performance. (Tr. Vol. 2, pp. 119-

123; Ex. Q-2 and Q-3.)

234. The Court further credits Dr. Jones’ testimony that it is unacceptable

under professional standards for an individual to examine a test and declare, based on

his/her own professional judgment, that it has criterion-related validity when there is no

data to support the judgment. (Tr. Vol. 2, p. 123.)

235. Dr. Davis did not conduct a criterion-related study to attempt to relate

performance on the push-ups or sit-ups components of the PAT to police officer

performance. (S 77.)

236. With respect to the sit-up component of the PAT, there is no criterionrelated study of record that has been identified by the Defendant or its expert as having

relevance to this case. (See Tr. Vol. 3, p. 148.)

237. With respect to the push-ups component of the PAT, the only criterionrelated study involving law enforcement officers that Dr. Davis has identified is his 1988

Anne Arundel County study. (See Davis Depo. (11/17/04-11/18/04) at pp. 23-24, 26-

27, 106-07, 109-110; Ex. 17 at Appendix C (“Relevant Publications and Citations”); see

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14 The Anne Arundel report provides no support for an opinion that the sit-ups

component of the PAT or any other sit-ups test has criterion-related validity for the

simple reason that the report said nothing about sit-ups. (See Ex. W, p. 8 (noting that

the Anne Arundel study says nothing about sit-ups).)

53

also Tr. Vol. 3, p. 148.)

238. At trial, however, counsel for the City, when questioned by the Court,

seemed to indicate that – while the City was not completely withdrawing its reliance on

the study – the City had chosen to not highlight the Anne Arundel study by having Dr.

Davis not testify about it during his direct examination. (Tr. Vol. 3, p. 157.)

239. Regardless whether or not the City withdrew its reliance on the Anne

Arundel report, the City did not introduce the report into evidence, and Dr. Davis’

reports, Tr. Ex. 16 and 17, do not discuss the Anne Arundel study. Accordingly, the

only evidence presented at trial regarding any criterion-related study of a push-ups test

involving law enforcement officers was the unrebutted testimony and reports of the

United States’ experts regarding the Anne Arundel study.14

240. The Court credits the testimony of Dr. McArdle that one cannot infer any

similarities between the Anne Arundel study and the PAT because the two tests are

materially different from one another and do not test the same construct. (Tr. Vol. 3,

pp. 88-89, Ex. W, pp. 7-8.) As Dr. McArdle credibly explained, the Anne Arundel pushups test required that the subject perform as many push-ups as possible to exhaustion,

without any time limit, thereby measuring the subject’s muscular endurance. For

example, an individual who performed 18 push-ups in 60 seconds would have received

a higher score than an individual who performed 17 push-ups in 15 seconds. (Tr. Vol.

3, pp. 82-83, Ex. W, p. 7.)

241. By contrast, the PAT’s push-up component was tied to performance within

a short time period and thus (unlike the Anne Arundel study) depended greatly on

speed. An individual who could perform 40 push-ups within one minute but could not

do push-ups quickly enough to complete 17 push-ups in 15 seconds would have scored

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well on the Anne Arundel test, but would likely score poorly on the PAT. (Ex. W, p. 7.)

242. Although speed mattered a great deal in terms of performance on the

push-ups component of the PAT, nothing in the Anne Arundel report established a

relationship between push-up speed and job performance. Accordingly, even if the

Anne Arundel study had established that the Anne Arundel push-ups test had some

level of criterion-related validity, that would not establish that the push-ups component

of the PAT had criterion-related validity. 

243. Moreover, Dr. Siskin credibly testified that, to the extent the Anne Arundel

study indicated that the Anne Arundel push-ups test predicted anything at all, the study

illustrated that the Anne Arundel push-ups test was unfair to women. (Tr. Vol. 3, pp.

166-67; id. at 205; Ex. S at ¶¶ 34-36.)

244. Using Trial Exhibit T-7, Dr. Siskin explained that a statistical analysis

contained in the Anne Arundel report showed that both male and female subjects in the

study who successfully climbed a six-foot wall did significantly more push-ups than

subjects of the same gender who did not successfully climb the wall. Stated otherwise,

according to Dr. Siskin, the Anne Arundel push-ups test predicted the subject’s ability to

successfully climb a six-foot wall. (Tr. Vol. 3, pp. 161-63, Ex. T-7, Ex. S at ¶¶ 35-36.)

245. However, using Trial Exhibit T-8 to illustrate the point graphically, Dr.

Siskin explained that the same number of push-ups done by males and females did not

predict the same likelihood of success at climbing the wall. Rather, females who

successfully climbed the wall did approximately the same number of push-ups as males

who failed to climb the wall and did many fewer push-ups than males who successfully

climbed the wall. Thus, females who performed 21 push-ups were as likely as males

who did 33 push-ups to climb the wall successfully. (Ex.s T-8, T-7, Tr. Vol. 3, pp. 163-

65, Ex. S at ¶ 36.)

246. Dr. Siskin credibly explained that this is an example of “differential

validity.” In other words, according to the Anne Arundel analysis, if a man and a woman

obtained the same score on the push-ups test, the woman’s predicted job performance

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would be better than the man’s. Thus, in order to select men and women who would

perform equally well on the job, the employer would have to use different cutoff scores

on the push-ups test for men and women. Specifically, the Anne Arundel report

indicates that, if men were required to do 33 push-ups, then women should be required

to do only 21 push-ups in order to select men and women with an equal likelihood of

climbing the wall. (Tr. Vol. 3, pp. 164, 20, 166-67, 168.)

247. The Court accepts as credible Dr. Siskin’s explanation that, in this

circumstance, requiring that men and women complete different numbers of push-ups

to pass the test is not “gender-norming,” and it is not using “different standards” for

males and females. Rather it is using the same standard in terms of predicted success

on the job task at issue (to wit, wall climb). (Tr. Vol. 3, pp. 166, 168-69.)

248. Based on the unrebutted evidence presented at trial, the Anne Arundel

study provides no support for Dr. Davis’ opinion that the push-ups component of the

Erie PAT has criterion-related validity and, instead, indicates that the push-ups test

used in Anne Arundel was unfair to women and was not valid as a stand-alone test. 

249. Dr. Davis did not conduct a criterion-related study to relate the push-ups

or sit-ups component of the Erie PAT to police officer job performance. (S 77.) 

250. Dr. Davis has never validated, used or recommended a test of 15-

seconds duration as a measure of muscular endurance. (S 78.)

251. Dr. Davis knows of no other law enforcement agency or research study

that has used a 15-second test of push-ups or sit-ups to measure muscular endurance.

(S 79.)

252. The City has produced no formal study finding a statistically significant

correlation between a push-ups test and/or sit-ups test and performance in a struggle or

simulated struggle. (S 80.)

253. In summary, the Court finds that the City failed to establish at trial that the

either the sit-ups or push-ups components of the PAT, standing alone, had criterionrelated validity.

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ii. Construct Validity

254. The parties have stipulated that the construct validity approach requires

both: 1) a showing that the test being validated measures a particular identifiable

characteristic (or “construct”); and 2) a showing that the construct is related to job

performance. To fulfill the second requirement, the user should show empirically that

the test validity relates the particular construct measured by the test to the performance

of critical or important work behavior(s). This often requires a criterion-related study. 

(S 63.)

255. Thus, as Dr. Jones testified, using Trial Exhibit Q-4 as an illustration, in

order to establish that the push-ups (or sit-ups) component of the PAT has construct

validity, the City would have to prove that the push-ups (or sit-ups) component is

statistically related to other measures of the same construct and that the other

measures of the construct are statistically related to job performance. Dr. Jones’

testimony is consistent with the parties’ stipulated definition of construct validity and

was not rebutted by the City. (Tr. Vol. 2, pp. 124-26; Ex. Q-4.)

256. Dr. Davis claims that the push-ups and sit-ups components of the PAT

measure the construct of muscular endurance and that muscular endurance is required

to engage in a physical struggle. (Tr. Vol. 2, p. 84; Davis Depo. Tr. (11/17/04-11/18/04)

at pp. 99-101.)

257. However, neither Dr. Davis nor the City presented any evidence of a

statistical relationship between the push-ups or sit-ups component of the PAT and any

recognized measure of muscular endurance. (Tr. Vol. 2, pp. 140-41; Ex. Q-7.)

258. In fact, the evidence credibly shows that a push-ups or sit-ups test that –

like the push-ups and sit-ups components of the PAT – emphasizes performing a rapid

number of repetitions in a brief period like 15 seconds does not measure muscular

endurance. (Tr. Vol. 3, p. 116; Ex. W, p.3 at ¶ 4; id. at pp. 7-8; Tr. Vol. 2, pp. 85-86,

Davis Depo. Tr. (11/17/04-11/18/04) at p. 112; Tr. Vol. 3 at pp. 79, 83-85, 157.)

259. Indeed, the City stipulated that Dr. Davis has never validated, used or

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recommended a test of 15 seconds duration as a measure of muscular endurance and

that Dr. Davis knows of no other law enforcement agency or research study that has

used a 15-second test of push-ups or sit-ups to measure muscular endurance. (S 78-

79.)

260. Because the City has not established that the push-ups component or situps component of the PAT measures the construct of muscular endurance, the City

has not established that either component, as a stand-alone test, has construct validity. 

261. Moreover, even if the City had established that the push-ups and sit-ups

components of the PAT measure muscular endurance, the City presented no evidence

of a statistical relationship between muscular endurance and job performance. 

262. Although the City added the push-ups and sit-ups components to the

obstacle course based on the belief that they would relate to performance in a struggle,

the City stipulated prior to trial that it had produced no study finding a statistically

significant correlation between a test of muscular endurance as measured by push-ups

or sit-ups and performance in a struggle or simulated struggle. (S 28, 80.)

263. In fact, according to Dr. Davis, success in a struggle depends more on

strength and lean body mass than muscular endurance, and lean body mass correlates

negatively with muscular endurance. In other words, individuals who have more lean

body mass are likely to perform best in a struggle, but worst on a push-ups and sit-ups

test that measures muscular endurance. (See Davis Depo. Tr. (11/17/04-11/18/04) at

p. 105, 186-88, Ex. W, pp. 8-9; Tr. Vol. 3, p. 105; Tr. Vol. 2, pp. 68-69.)

264. Moreover, to the extent that Dr. Davis’ opinion regarding construct validity

is based on an assumption that the ability to do more push-ups and sit-ups will mean

better performance in a struggle because the same muscle groups used to perform

push-ups and sit-ups are involved in a struggle, the Court declines to credit that opinion. 

(Tr. Vol. 2, pp. 78-79.)

265. Instead, the Court credits Dr. McArdle’s testimony that, pursuant to the

well-established principle of “exercise specificity,” broad measures of general physical

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fitness like sit-ups and push-ups do not reflect an individual’s ability to perform specific

physical tasks even if those tasks require the activation of similar musculature. As a

simple example, Dr. McArdle pointed out that the person who lifts the most weights at

the gym will not necessarily be the best shot-putter, high jumper, boxer or wrestler. 

Similarly, the person who performs more push-ups (or sit-ups) is not necessarily the

one who will perform best in the physical activities performed by police officers. (Ex. W,

p. 9; Tr. Vol. 3, pp. 100-102.)

266. Because the City has established neither: 1) that the push-ups and situps components of the PAT measure muscular endurance; nor 2) a statistical link

between a recognized test of muscular endurance and any measure of police officer job

performance, the City has not established that either the sit-ups component or the

push-ups component of the PAT, as a stand-alone test, would have construct validity. 

267. In summary, the City and its expert have produced no evidence

establishing through any method that the push-ups and sit-ups components of the PAT,

standing alone, are valid. Thus, even if it were appropriate methodology for the City to

validate the PAT by demonstrating the validity of each component part separately (an

approach which we have expressly disapproved here), the City has failed to make the

requisite showing. For the reasons set forth above, the push-ups and sit-ups portions

of the PAT are not valid, even when considered as independent test components.

268. The PAT, therefore, fails to satisfy the requirement of job-relatedness.

5. The City has failed to prove that the PAT’s passing score corresponds to

the minimum level of the tested skills necessary to successfully perform

the job of police officer.

269. The parties have stipulated that, in the field of I/O psychology,

professionally recognized methods by which cutoff scores appropriately are set include

norm-referenced methods, content-related methods and criterion-related methods. (S

68; see also Tr. Vol. 2, pp. 144-45.)

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59

270. As previously noted, in setting the PAT’s passing standard, the City did

not employ any of the foregoing methods in determining whether the PAT’s passing

standard of 90 seconds corresponds to the minimum level of ability that is required for

successful performance as a police officer. (Tr. Vol. 1, pp. 189-90.)

271. Rather, as noted above, the City has stipulated that its representatives

who were involved in deciding to use 90 seconds as the passing standard for the PAT

did so because they believed that the City would be requiring a “medium” or “average”

level of physical ability, and that seemed “fair” and “the best way to go.” (S 44.)

272. Dr. Davis did not do an analysis of the PAT’s passing standard using a

norm-referenced, content or criterion-related method. (S 82.)

273. In his July, 20004 report, Dr. Davis described three additional methods for

setting or validating cutoff scores: a “pacing” (or “concordant”) method, a “research

design” method, and a “perpetrator” method. (S 69-72.)

274. Dr. Davis did not conduct a “research design” study, or do a “perpetrator”

analysis, or use the “pacing” method to justify the PAT cutoff score. (S 75, 76, 81.)

275. Dr. Davis did not do an analysis of the PAT passing standard using the

“pacing” or “concordance” method.” (S 81)

276. The Erie police officers’ responses to Dr. Davis’ “job task analysis” survey

provide no information about how quickly the officers performed the tasks referred to on

the survey form. The survey responses, therefore, provide no basis for a conclusion

that the PAT’s 90-second cutoff time is consistent with business necessity. (Ex. 17,

App. C, p. 11.)

277. In fact, Dr. Davis never mentioned the 90-second cutoff time on the PAT

in either of his expert reports. (See generally Ex.s 16 and 17.)

278. In short, Dr. Davis did no analysis establishing that the PAT passing

standard corresponds to the minimum level of the tested skills necessary to perform the

job of police officer successfully. 

279. Indeed, at times during the trial it was unclear what Dr. Davis’ opinion

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actually is with regard to whether the 90-second passing time corresponds to the

minimum level of physical ability necessary to perform the police officer job

successfully. In his July 14, 2004 report, Dr. Davis writes, “[T]he City is 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,” thus suggesting that the PAT is, in fact,

too easy. (Ex. 17, p. 7.) During his deposition in this case, he admittedly stated that

“[i]f the test is so incredibly insensitive to allow an 11-year-old girl to pass it, it hardly

rises to the definition of a valid test.” (Tr. Vol. 2, p. 91 (quoting 11/18/04 Depo. Tr., p.

184, L 21).) He also admittedly stated during deposition that “the sensitivity that we

have with this fairly minimal test in my opinion really doesn’t rise to the level of having a

strong predictive power because of the fact the test is so easy.” (Tr. Vol. 2, p. 88

(quoting Depo. Tr. p. 113, L 11).) And at trial he testified that, even if a more stringent

passing standard (e.g., 85, 80 or 75 seconds) were used on the PAT, in his opinion, the

PAT still would be “fundamentally defective because it lacks a strength component.” 

(Tr. Vol. 2, p. 93.)

280. Nevertheless, Dr. Davis also stated at trial that, despite his reservations

that the PAT is too easy, “it meets categorically the expectation of the minimum,

minimum, minimum physical standard” for police officer work. (Tr. Vol. 2, pp, 45-46.) 

Dr. Davis’ occasional ambiguity is perhaps best reflected in his response to his own

counsel’s questioning: when asked whether the PAT “distinguish[es] well for those who

pass the test, between those who can do the job and those who can’t,” Dr. Davis

replied, “Probably not. I clearly believe that it does a very good job of selecting up

people who could not do the job, yes.” (Tr. Vol. 2, pp. 97-98.)

281. Moreover, Dr. Davis’ testimony at times seemed directly at odds with the

mandates of Lanning. When asked by the Court what the cutoff time should be on this

test “if it was, in [his] opinion, to be a valid test within the meaning of Lanning,” Dr.

Davis initially testified that he is “really quite pleased with” the 90-second cutoff. (Tr.

Vol. 2, p. 93.) Yet, in his rebuttal testimony, Dr. Davis acknowledged that his “litmus

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15 In defending the City’s use of incumbent volunteers (presumably, a highly

motivated group of individuals) in the 1994 standard setting exercise, Dr. Davis testified

as follows:

... If you’re trying right now to take a snapshot in time that is supposed to

go forth from 20 to 30 years of employment, that’s a long way to look over

the horizon. The best probability of getting the person that is going to go

the distance is trying to find the person who does exceed by some

reasonable margin the minimal levels of what the job is. And certainly I’d

like to have at least the average of what I consider to be a reasonably

motivated cohort.

***

THE COURT: I just want to make sure I caught something. What

you say you’re looking for are people who will exceed by some reasonable

amount the minimum necessary qualifications to do the job, that’s what

you just said, isn’t it?

[DR. DAVIS]: You’re right, your Honor. It’s what I call the litmus

test. It’s not that we want to find the tensile breaking strength of a rivet for

the wing of an airplane, we would like to have a safety factor above that.

...

 (Tr. Vol. 4, pp. 23-24.)

61

test” for hiring is whether a police officer candidate will exceed by some reasonable

amount the minimum necessary qualifications to do the job.15

282. To the extent that Dr. Davis’ testimony can be understood as stating that it

is his opinion that the 90-second passing standard corresponds to a point at or below

the minimum level of the physical abilities necessary to successfully perform the job of

police officer, the Court declines to credit that opinion because Dr. Davis provided no

reliable basis for such an opinion. 

283. Thus, Dr. Davis’ testimony does not establish that the 90-second passing

standard used by the City corresponds to the minimum level necessary to perform the

entry level police officer job successfully.

284. The Court further finds that the 1994 standard-setting exercise performed

by the 19 incumbent police officers does not establish that the PAT’s 90-second

passing score corresponds to the minimum level necessary to successfully perform the

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16 The City asserts that Dr. Siskin’s testimony is rebutted by the fact that the

average performance of the group of incumbents who participated in the standardsetting exercise would not change substantially if the 8 SWAT team members were

excluded. We find, however, that – on the contrary – this evidence buttresses the

conclusion not that the SWAT team members were themselves low or average

performers but, rather, that the group as a whole, including non-SWAT team

incumbents, were better-than-average performers. (See D 95, D 96; Tr. Vol. 2, p. 48;

id. at 164-65; Tr. Vol. 3, pp. 182-86.)

62

job. On the contrary, the Court finds that the design of the standard-setting exercise

made it likely that the passing standard was set too high. 

285. The United States’ experts, Drs. Siskin and Jones, credibly testified that

the use of volunteers in the standard-setting exercise may well have inserted a “bias”

into the results because research shows that volunteers tend to be better-than-average

performers. (Tr. Vol. 3, pp. 179-80, 182-83; Ex. S at ¶ 19; Tr. Vol. 2, pp. 152-54, Ex. P

at ¶ 129; Tr. Vol. 3 at pp. 193, 196-97.) In fact, while Dr. Davis defends the City’s use

of incumbent volunteer officers in the 1994 standard setting exercise, he acknowledged

that it would be a “reasonable basis for a challenge” to assert that the use of volunteers

“stacked the deck because these are self-selective people.” (Tr. Vol. 2, p. 47.)

286. Dr. Siskin credibly testified that the over-representation of (8) SWAT team

members among the 19 volunteers (at a time when the SWAT team constituted no

more than 15% of the City’s police force, see fn. 3, supra) – and the evidence that the

non-SWAT volunteers performed comparably or nearly as well as the SWAT

members16 – suggests that, as the research would indicate, the deck was indeed

“stacked.” (Tr. Vol. 3, pp. 182-83; Ex. S at ¶ 19.)

287. The City and its expert have suggested that the 19 incumbents may not

have put forth their best effort in the standard-setting exercise because of a lack of

motivation. However, there is no evidence of record to suggest that the incumbents did

not put forth their fullest efforts. On the contrary, the only two incumbent witnesses who

were questioned on the matter confirmed that they gave their best efforts during the

exercise. (Ex. GG; Tr. Vol. 1, pp. 137, 139 (Fetterman testifying); id. at pp. 26-27

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(Kemling testifying); Kemling Depo. Tr. (12/2/04) at pp. 17-18; see also D 131.)

288. Moreover, Dr. Siskin credibly opined that, for the same reasons that

volunteer test-takers tend to be better-than-average performers, volunteers also tend to

put forth their best efforts when testing. (See Ex. S, ¶ 19.)

289. In addition, the City stipulated that the police department requested

volunteers for the standard-setting exercise by distributing a memorandum that

informed potential volunteers that the standard-setting exercise was being conducted to

set the physical ability standard for new hires. (S 37.) Absent any evidence that the

volunteers in fact were not motivated, it is fair to infer that the fact that the exercise was

being used to set standards for new police officers would itself serve as motivation for

the 19 incumbents to perform well. (See, e.g., Kemling Depo. (12/2/04) at p. 18.) This

inference is particularly reasonable in light of the testimony received from several City

police officers which generally confirms that incumbent officers rely heavily upon one

another in the course of normal patrol duties and they therefore support high fitness

standards as a means of ensuring that their peers will be reliable allies in pressure

situations. (See generally Tr. Vol. 1, pp. 42-43 (Raszkowski testimony); id. at p. 48

(Kress testimony); id. at pp. 79, 88 (Kuhn testimony); id. at pp. 124-25 (Mangan

testimony); id. at p. 148 (Fetterman testimony)).

290. Accordingly, the Court credits Dr. Siskin’s opinion that the average of the

group of 19 volunteers who participated in the standard-setting exercise likely was

higher than the average of a representative sample of Erie police officers (or the

average of Erie’s police officers as a whole) would have been. (Tr. Vol. 3, pp. 180, 182;

175-76; 193-96; Ex. T-14.)

291. Furthermore, even if the 19 volunteers who participated in the standardsetting exercise had been representative, setting a cutoff at the average of a group

implies that about half of the group will fail – i.e., if the cutoff corresponds to the

minimum level of ability necessary to perform the job successfully, then presumably

about half the group cannot do the job. (Tr. Vol. 3, pp. 179, 188; Tr. Vol. 2, pp. 145-46,

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17 The Court acknowledges that the mean time score of the 19 incumbent

volunteers was actually 87 seconds. Thus, police officer candidates received the

benefit of a 3-second cushion when the passing score was raised to 90 seconds. 

However, the Court continues to find, notwithstanding this 3 second benefit, that the

use of the mean scores of the 19 volunteers tended to artificially inflate the passing

score beyond the level reflective of the minimum physical requirements of the job.

64

149-50; Tr. Vol. 3, p. 31.) Yet the City stipulated that all 19 volunteers were performing

their jobs adequately at the time of the 1994 standard setting exercise. (S 39.) By

definition, the average level of ability of a group of police officers, all of whom have at

least the minimum level of ability necessary to perform a job, is not the same as the

minimum level of skills necessary to perform the job. 

292. Dr. Davis attempted to justify the use of incumbent volunteers and the use

of their mean scores by explaining that there is an inevitable age-related decline in

officer performance following the first day of hire. Thus, it was Dr. Davis’ suggestion

that no score less than the mean could possibly reflect the minimum requirements of

the entry level police officer job. In this regard, however, the Court credits the opinion

of Dr. McArdle that lifestyle is a more relevant factor than age in terms of predicting the

fitness level of veteran police officers, particularly in the age range reflected by the 19

incumbent volunteers. The Court further credits Dr. McArdle’s opinion that experience

and training can improve officer performance in the essential physical tasks of the job.

Therefore, the Court declines to credit Dr. Davis’ justification for the use of the

incumbent volunteers and their mean scores in setting the PAT cutoff score.17

293. Finally, the Court finds that the results of the 1994 standard-setting

exercise further suggest that the passing standard used by the City were likely set too

high. According to Tr. Ex. GG, the results of the standard-setting exercise, only four (or

21%) of the 19 volunteers completed the obstacle course/run in 60 seconds and

completed 17 pushups in 15 seconds and nine sit-ups in 15 seconds. If the 19

volunteers were representative of Erie officers, and one accepted the City’s contention

that the components of the PAT should be viewed as separate tests, this would imply

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65

that 79% of all Erie police officers were not performing their jobs adequately. (Ex. T-11;

Tr. Vol. 3, pp. 187-88; Ex. S at ¶ 15; Tr. Vol. 2, pp. 150-51.)

294. However, as indicated previously, the standard-setting exercise was not

the same as the PAT actually administered to applicants, because the actual PAT was

given as one test with one overall cutoff time. Dr. Siskin therefore performed a

“conservative” calculation of the percentage of the 19 incumbents who, based on the

standard-setting data, would be expected to fail the PAT as it was actually administered

to applicants. That calculation, which the Court accepts as credible, indicates that

approximately 26% of the 19 incumbent volunteers (or 5 of the 19) would have failed

the PAT as it was administered to applicants. (Tr. Vol. 3, pp. 188-90; Ex. T-11.)

295. Based on all the available information, including the volunteer sample and

the conservative nature of his calculation, Dr. Siskin estimated that the true incumbent

failure rate on the PAT would be at least a quarter and maybe as high as one third to

one half. (Tr. Vol. 3, p. 190.) The Court accepts this estimation as credible.

296. The City presented no evidence that any substantial portion – a half, a

third or a quarter – of the City’s police officers could not perform their job successfully

due to an inadequate level of the physical skills measured by the PAT. 

297. Certain facts relative to the female contingent of the Erie police force

provide additional evidence that the PAT’s passing standard was likely set too high. 

For example, we note that the majority (five) of the eight female officers currently on the

City’s police force were hired before the City began using the PAT in 1994. Two of the

five females, Detective Kemling and Detective Sergeant Mangan, were hired after

passing the physical agility test the City used to screen applicants in 1992, which was a

gender-normed test that required female applicants to complete only four push-ups in

40 seconds and 12 sit-ups in 60 seconds. (Tr. Vol. 1, pp. 30-31; Ex. II; Tr. Vol. 1, pp.

126-27; Ex. H; Mangan Depo. Tr. (12/3/04) at pp. 5, 9; Depo. Ex. 96; Ex. AA & BB,

Request No. 41.)

298. The City has presented no evidence that Detective Kemling or Detective

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Sergeant Mangan were ever unable to perform the physical tasks required by their jobs.

On the contrary, Detective Sergeant Mangan has been promoted twice and received a

commendation for her police work. (Tr. Vol. 1, p. 127.) Detective Kemling has been a

field training officer and has been promoted to the rank of detective. (Kemling Depo Tr.

(12/2/04) p. 6, Tr. Vol. 1, p. 19.)

299. Officers Raszkowski, Szoszorek and Szocki, the three of the City’s eight

female officers who were hired during the period when the City was using the PAT,

barely passed it. 

300. Officer Szocki took the PAT in 1994 and passed with a score of 90

seconds (i.e., with no time to spare). (Tr. Vol. 1, pp. 98-99, 198-99; Ex. L; Szocki Depo.

Tr. (12/3/04) at p. 10; Depo Ex. 102; see also D 124.)

301. Officer Szoszorek took the PAT in 2002, the year in which the City

changed the passing standard to 95 seconds due to inclement weather. She passed

the PAT with a time of 93 seconds (i.e., with two seconds to spare). (Tr. Vol. 1, pp.

104-105; Ex. M; Szoszorek Depo Tr. (12/3/04) at pp. 10-11; Depo. Ex. 101; see also D

125.)

302. Officer Raszkowski was a Pennsylvania high school state champion in the

two-mile run and was running four to six miles and doing 20 push-ups and about 100

sit-ups three to four times per week when she applied to be an Erie police officer. 

Officer Raszkowski failed the PAT in 1996 when she inadvertently discontinued her situps, believing she had completed that portion after performing only seven sit-ups. After

being advised to keep going, Ms. Raszkowski resumed her sit-ups, but failed the PAT

by one second. She retook the PAT in 1998 and passed with a score of 87 seconds

(i.e., with 3 seconds to spare). (Tr. Vol. 1, pp. 33-34; 39-42; Ex. J; Raszkowski Depo.

Tr. (12/3/04) at pp. 6-7, 9, 12-13, 23-24; see also D 123.)

303. The City offered no evidence that any of the three female officers hired

after barely passing the PAT was a minimally-performing police officer or had only the

minimum level of physical ability necessary to perform the job. In fact, Officer

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Raszkowski, who attended the Mercyhurst College Municipal Police Training Academy,

won an award for outstanding physical conditioning at the Academy. (Tr. Vol. 3, pp. 61-

62; Ex. I.)

304. The 1994 standard-setting exercise simply does not establish that the

passing standard the City used on the PAT reflects the minimum level of physical ability

necessary to perform the job of entry-level police officer successfully and, on the

contrary, suggests that the City likely used a passing standard that was too high. 

305. In summary, the City has failed to prove that the PAT is job-related for the

position in question. Moreover, even if the City had proved that the PAT was jobrelated, the City failed to prove that the passing standard it used corresponds to the

minimum level of physical ability necessary to successfully perform the police officer

job. 

II. CONCLUSIONS OF LAW

1. To the extent any of the Court’ findings of fact may be considered

conclusions of law, such findings are incorporated herein.

2. Jurisdiction over this case is proper under 28 U.S.C. § 1345 and 42

U.S.C. § 2000e-6(b). Venue is proper in this district under 28 U.S.C. § 1391(b).

3. Under the disparate impact theory of employment discrimination first

articulated by the Supreme Court in Griggs v. Due Power Co., 401 U.S. 424 (1971), and

later codified by Congress in the Civil Rights Act of 1991, Title VII prohibits employment

practices which, although “fair in form,” are nevertheless “discriminatory in operation.” 

Id. at 431.

4. The applicable burdens of proof in a disparate impact case under Title VII

are set forth at § 703(k) of the statute, 42 U.S.C. § 2000e-2(k). That provision permits

law enforcement agencies to assess candidates for police officer positions with a

physical test that results in a disparate impact on females only if the test is “job related

for the position in question and consistent with business necessity.” 42 U.S.C. § 2000eCase 1:04-cv-00004-SJM Document 86 Filed 12/13/05 Page 67 of 73
68

2(k)(1)(A)(i).

5. Because of the Court’s previous ruling and conclusion that the

Defendant’s use of the PAT had an adverse impact on female candidates for the job of

police officer for the City of Erie, the burden at trial was upon the Defendant to prove

that their use of the PAT was “job related” and “consistent with business necessity.” Id. 

This involves a 2-step inquiry in the Third Circuit, corresponding to each requirement. 

See Lanning v. SEPTA, 181 F.3d 478, 489 (3d Cir. 1999) (“Lanning I”) (“Congress

chose the terms ‘job related for the position in question’ and ‘consistent with business

necessity.’”) (emphasis in the original). 

6. As required by the opinions of the Court of Appeals for the Third Circuit in

Lanning I, 181 F.3d at 481, and Lanning v. SEPTA, 308 F.3d 286 (3d Cir. 2002)

(“Lanning II”), the standard for assessing the “business necessity” of a discriminatory

passing standard or score on an entry-level police officer test is whether the passing

standard “reflects the minimum qualifications necessary to perform successfully the job

in question.” Lanning I, 181 F.3d at 489; see also United States v. State of Delaware,

2004 WL 206881, *1 (E. Del., March 22, 2004). 

7. Contrary to the City’s assertion, nothing in the Third Circuit’s opinions

indicates that there is an exception to this business necessity standard when an

employer asserts that it is trying to “improve” its workforce. 

A. Job Relatedness

8. Given the City’s concession, and this Court’s findings, that the City’s use

of the PAT as a unitary test caused a disparate impact against female applicants, the

use of the PAT as one test with one passing standard is the challenged “employment

practice” at issue for which the City had to prove job-relatedness and consistency with

business necessity. 

9. For the reasons outlined in more detail above, the City failed to prove by a

preponderance of the evidence the job-relatedness (or validity) of the PAT as a unitary

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18 At trial, Dr. Davis made the assertion that the Third Circuit “threw out the entire

SIOP principles” in Lanning I. (See Tr. Vol. 4, p. 6.) We assume Dr. Davis was

referring to footnote 20 of the court’s opinion, in which it stated that “[t]o the extent that

the [Principles for the Validation and Use of Personnel Selection Procedures (“SIOP

Principles”)] are inconsistent with the mission of Griggs and the business necessity

standard adopted by the Act, they are not instructive.” 181 F.3d at 493 n. 20. As is

self-evident from the court’s chosen language, the court did not “throw out” or otherwise

invalidate the SIOP Principles in their entirety. Rather, the court’s comment was made

in reference to the fact that the district court in Lanning I had improperly failed to

consider whether Dr. Davis’ suggested cut-off score for SEPTA transit police officers

reflected the minimum aerobic capacity necessary to successfully perform that job. The

Third Circuit was criticizing the district court for having adopted Dr. Davis’ suggested

cut-off score as “readily justifiable” – a standard which appeared to be derived from the

SIOP Principles – rather than analyzing whether the suggested cut-off score was truly

reflective of the minimum job requirements as Griggs mandates. Accordingly, we see

nothing in the Lanning I decision which requires us to abandon, wholesale, any reliance

on the Principles and Standards discussed herein. Nor do we consider our reliance on

those Principles and Standards in the context of this case to be in any way “inconsistent

with the mission of Griggs and the business necessity standard adopted by the Act.” 

181 F.3d at 493 n. 20.

69

test – that is, as it actually was used by the City. 

10. Moreover, even if it were acceptable for the City to demonstrate the

validity of each of the individual components of the PAT as if each were a separate,

stand-alone test, the City has not made such a demonstration by a preponderance of

the evidence. 

11. More specifically, the City has not proved the validity of the push-ups or

sit-ups component of the PAT under the validation strategies generally followed by the

employment testing profession18 or by any of the other methods that the City’s expert

claimed could be used to validate a physical test.

12. On the contrary, to the extent that evidence regarding the validity of the

push-ups component was presented to the Court, the evidence suggests that the pushups component is not valid. As to the sit-ups component, there was a complete

absence of proof by the City as to its validity.

13. Because the City failed to meet its burden of proof as to the “jobCase 1:04-cv-00004-SJM Document 86 Filed 12/13/05 Page 69 of 73
70

relatedness” requirement under Title VII, the City’s use of the PAT between 1996 and

2002 violated that statute. Accordingly, the Court technically need not reach the issue

of whether the passing standard on the PAT was set at a level corresponding to “the

minimum qualifications necessary to perform successfully the job in question.” Lanning

I, 181 F.3d at 489. We nevertheless do so for the sake of judicial expediency.

B. Consistency with Business Necessity

14. Even if the City had established “job-relatedness” with respect to the PAT,

the City has not established that its use of the PAT with the 90-second cut-off score

was consistent with business necessity in that it has not proved by a preponderance of

the evidence that the PAT’s passing standard corresponds to the minimum

qualifications necessary to successfully perform the job of police officer. 

15. On the contrary, as discussed more fully above, there is substantial

evidence of record which suggests that the cut-off score for the PAT was likely set too

high.

16. In Lanning II, the Third Circuit explained that an employer could show that

a passing standard reflects the “minimum qualifications necessary” for successful

performance by showing that individuals who pass the test are “likely to be able to do

the job” whereas individuals who fail the test “will be much less likely to successfully

execute critical policing tasks.” Id., 308 F.2d at 291. The City has not presented any

evidence to make such a showing.

17. By the City’s own admission, its expert performed no analysis of the

PAT’s passing standard. His bare opinion is insufficient to establish that the passing

standard used by the City corresponds to the minimum qualifications necessary for

successful performance. Lanning I, 181 F.3d at 491-92 (“judgment alone is insufficient

to validate an employer’s discriminatory practices”). 

18. Moreover, to the extent Dr. Davis performed any “study” at all, the Court is

mindful of the Third Circuit’s admonition that “studies done in anticipation of litigation to

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validate discriminatory employment tests that have already been given must be

examined with great care due to the danger of lack of objectivity.” Lanning I, 181 F.3d

at 481 (citation omitted).

19. Finally, to the extent Dr. Davis opined that “more is better” with respect to

the physical capabilities of police officer candidates, we note the Third Circuit’s

observation that “[i]t is unlikely that such a [‘more is better’] study could validate

rankhiring with a discriminatory impact based upon physical attributes in complex jobs

such as that of police officer in which qualities such as intelligence, judgment, and

experience surely play a critical role.” 181 F.3d at 493 n. 23.

20. The City’s 1994 standard-setting exercise does not demonstrate that the

PAT’s passing standard is consistent with business necessity. While this Court does

not question the City’s good faith in conducting the standard-setting exercise, the

decisions made by the City in administering that exercise and in choosing the cut-off

score for new officer applicants made it probable that the PAT’s passing standard

would be set at an inappropriately high level, both because the City used a nonrepresentative sample of 19 volunteers and because the City chose to utilize the

average scores of the volunteers, all of whom the City admitted were performing their

jobs at least adequately, rather than determining the level which distinguished

successful from unsuccessful performers. 

21. The fact that the City’s 1994 standard-setting exercise resulted in a

passing standard that would exclude substantial numbers of incumbents who were

performing the job successfully suggests that the passing standard did not correspond

to the minimum qualifications necessary to perform the job successfully. See Lanning I,

181 F.3d at 494 n. 24 ( evidence that incumbent officers failed the physical fitness test

yet successfully performed the job tends to show that the passing standard does not

correlate with the minimum qualifications necessary to perform successfully); United

States v. State of Delaware, 2004 WL 609331, *20 (passing standard that would

eliminate a substantial number of individuals who would perform the job at an

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acceptable level does not correspond with the minimum skill level necessary to do the

job). 

22. The City cannot justify a passing standard set at the average of a sample

of officers, all of whom were performing the job successfully and all of whom

volunteered to participate in the standard-setting exercise, simply by pointing out that,

on average, the officers in the sample were older than the typical applicant for an entrylevel police officer job in the City of Erie. The ages of successfully performing officers,

without more, cannot establish that their average performance corresponds to the

minimum qualifications necessary to perform the job successfully.

C. The City’s Liability

23. Because the City has failed to prove, by a preponderance of the evidence,

that its use of the PAT was both job-related and consistent with business necessity, the

City has failed to rebut the presumption that its use of the PAT constituted an

“unnecessary barrier” to employment. Griggs, 401 U.S. at 431. 

24. Buy using the PAT as a screening device for the selection of entry-level

police officers, the City of Erie violated Title VII between 1996 and the date (during the

course of this litigation) on which the City ceased using the last eligibility list resulting

from any selection process in which the PAT was administered. 

25. The nature of the specific relief to be awarded and the entitlement of

particular individuals to relief will be determined in the relief phase of this case,

following entry of judgment in favor of the United States with respect to liability. 

III. CONCLUSION

In rendering these findings of fact, the Court wishes to stress again that it does

not question the City’s good faith in developing and utilizing the PAT. On the contrary,

the Court acknowledges that the City made genuine efforts to develop a physical agility

test that would responsive to the Bureau’s needs, all the while limited by budgetary

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concerns and, at times, by objections raised by the police officers’ union. The Court

further acknowledges that the City took steps to make its hiring process more amenable

to females by modifying its administration of the PAT over the years.

The Court is also sympathetic to the concerns that various police officers have

expressed, quite legitimately, about maintaining the physical integrity of their force,

particularly as officers must regularly rely on one another in waging the war on crime. 

Accordingly, in rendering these findings and conclusions, the Court in no way

advocates the watering down of hiring standards in such a fashion as to jeopardize

either the lives of the officers or the health and safety of the public. Nor should these

findings and conclusions be interpreted as a call for quota systems, which would

themselves violate the mandates of Title VII. (See Lanning I, 181 F.3d at 490 n. 15

(“Nothing in the Griggs business necessity standard requires employers to hire

employees in numbers to reflect the ethnic, racial or gender make-up of the

community.”).)

Simply stated, we are bound by the dictates of Title VII as interpreted by the

Third Circuit in Lanning I and Lanning II. For all the reasons set forth herein, the City

has failed to meet its burden of proof with respect to its use of the PAT during the time

period challenged in this litigation. Accordingly, the Plaintiff is entitled to a judgment in

its favor with respect to the liability phase of this case.

An appropriate Order of Judgment is being filed simultaneously with these

findings of fact and conclusions of law.

s/ Sean J. McLaughlin 

SEAN J. McLAUGHLIN

United States District Judge

Dated: December 13, 2005

cm: All counsel of record.

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