Arbitrator Discusses “Line-of-Duty” Injury, Fitness Requirement
Marshfield (OnFocus) – Arbitrator Raleigh Jones has denied the grievance filed against the City of Marshfield by former Police Officer Jared Beauchamp. Arbitration had been requested by the grievant under Chapter 27 (Grievance Procedure) of the collective bargaining agreement between the City of Marshfield and the Marshfield Police Officer Bargaining Unit.
OnFocus has reviewed the official document issued by Jones, which is summarized herein. Statements are taken direct from official documents. OnFocus will share more information as it becomes public.
Timeline of Events
In March 2016, then-Chief Rick Gramza asked for Police & Fire Commission (PFC) approval to enter into a contract with a professional testing provider for the creation and validation of a job function test that would test for physical readiness qualifications of the Marshfield police officers.
Following PFC approval, the City retained Traci Tauferner, a licensed and certified athletic trainer and strength and conditioning specialist who was also certified in a variety of areas of functional fitness, job function testing and job function design testing. Prior to working with Marshfield, Tauferner had developed job function testing for other Wisconsin Police and Fire Departments.
Following her retention, Tauferner created a job function test (JFT) that was specific to the job functions for Marshfield police officers. Her goal was to create a test that accurately tested an officer’s ability to perform all essential functions of the job.
Working with a group of Marshfield Police Officers, she identified physical job functions and measured physical demands of the job. Over the course of 14 months, she validated the test by working with officers and fine-tuning requirements. She then tested validation and modified accordingly. She revised the test based on feedback.
On March 10 and March 11, 2017, all police officers on the force were required to run through the JFT unless there were extenuating circumstances – such as a medical excuse – which prevented them from participating. This testing took about 20 to 25 minutes and officers were paid for participating in the testing process. Tauferner again recorded the feedback from the officers as it was being given. After this, the test was again revised.
One of the last changes made to the JFT before it was finalized was setting a time standard and removal of obstacles for the quarter mile timed run. From July 2016 through July 2017, no time standard was set for the quarter mile run in the validation tests. Instead, the “officers were asked to run the quarter-mile as though they were either pursuing somebody that was a danger to the community, or they were retreating from someone who was pursuing them, or that they were trying to run towards danger if somebody was needing assistance, or if you were needing to render aid to somebody, that they would be running toward that person.”
As a result of the validation tests run by all active officers, roughly 80 percent of the officers were able to run the distance of a quarter mile in two minutes eight seconds. Approximately 90% of the officers were able to complete the distance in two minutes 15 seconds (hereinafter this number will be referenced as 2:15). Gramza ultimately set the time standard for the quarter mile run at 2:15.
The City also provided assistance and benefits to officers to prepare for the annual JFT. Gramza negotiated a free membership at a local gym for any officer who was willing to use it. He allowed officers to work out on duty during paid normal work hours. In the validation testing process, off-duty officers were paid overtime for an hour of time for participating in the 15-20 minute test.
Additionally, all officers were provided free access to athletic training and sports medicine services for needed assistance in learning exercise techniques, assistance in passing specific portions of the job function test, and treatment for physical injuries and ailments. Some officers made use of these services. The City also updated the Police Department exercise and weight room equipment so that officers did not need to go to another gym if they were not comfortable doing so.
Tauferner was scheduled at the Police Department weekly to provide the services referenced above. Additionally, Tauferner developed and provided officers with a six-week exercise and strengthening program designed to assist officers in successful completion of the March 2017 JFT test.
The Marshfield Professional Police Association (MPPA) had given notice to the City reserving its rights to bargain over proposed issues regarding the City’s Annual Job Function Test (AJT). At the outset of bargaining, the Association acknowledged that the City had the right to implement an annual fitness test. The parties went on to have face-to-face discussions about that testing.
November 2017-June 2018
MPPA and the City engaged in bargaining, during which the Association also exercised its right to bargain over the impact of the AJT. As a result of these discussions, officers were allowed to work out during work hours to prepare for the AJT and were given a clothing allowance to purchase fitness gear.
In March 2018, after the JFT had been finalized, the PFC considered and adopted it in an open session meeting (after having been seen by the Association).
Officers had five opportunities to take practice JFT tests to ensure they could pass the AJT. These five opportunities occurred in August 2018, October 2018, December 2018, February 2019 and April 2019. Officers were required to participate in at least one such scheduled practice test and no officer took a practice test in this period more than once. In the practice period between August 2018 and April 2019, only one of the 39 officers taking the test failed. In January 2019, Tauferner revalidated the test once more. After doing so, it was not changed from the August 2017 version.
Beauchamp did not participate in any of the validation or practice tests before May 1, 2019. On April 8, 2019, he was released to full duty following non work-related shoulder surgery. He then appeared for a practice test on April 24, 2019, wearing a knee brace. He told Tauferner that the brace was not fitting correctly and that he was going to get fit for a new brace the next day. He provided no medical restrictions that day, which was two weeks after he had been fully released to return to work. Despite providing no medical documentation supporting a deferral, Tauferner gave him a deferral from testing because she thought it would be unsafe for him to participate based upon what he told her.
Effective May 1, 2019, Marshfield Police Department officers were required to pass an annual job-specific fitness test to measure their ability to perform the necessary minimum physical requirements for specific job tasks.
On May 1, 2019, the AJT requirement “went live.” Thereafter, Tauferner conducted all AJT testing. Four officers failed their first AJT attempt after the test “went live.” Three of the officers who failed subsequently passed the AJT. Two of those officers sought strength and conditioning assistance from Tauferner immediately after failing and were successful in passing the AJT afterward. Another officer passed one week later after working on her own. The remaining officer who failed their first AJT attempt after the test “went live” was Beauchamp.
The City notified Beauchamp in May 2019 that he was scheduled to take the AJT on August 14, 2019.
On July 25, 2019, Beauchamp declined Tauferner’s offer of assistance to help him prepare for the AJT, and he never sought her out for strengthening and conditioning prior to taking the first AJT.
On August 12, 2019 – two days before his scheduled test date – Beauchamp sent an email to Chief Gramza and Human Resources Director Jennifer Rachu seeking an accommodation for the running portion of the AJT “due to a work-related knee injury and the aggravation and pain caused by running.” He asked to swim or bike instead of running.
Since Beauchamp had been released to full duty without any restriction in early April, and had not provided Rachu with any medical information or diagnosis to indicate he should not run, she responded and asked him to provide the same prior to the test. The record shows that Beauchamp had reported a work-related knee injury in October 2012.
In the Report of Injury he completed himself and filed, Beauchamp indicated that his injury was a knee strain that he had suffered when he was putting on a shoe. Insofar as the record shows, this was the only knee injury he ever sustained.
Beauchamp did not respond to Rachu or provide any medical restrictions prior to August 14, 2019. On that date, he appeared for the AJT and told Tauferner that he had pain when running and that he had just contacted his physician the day before, August 13, 2019, to request an accommodation for the run. Based upon Beauchamp’s statements, for which he again provided no medical documentation, Tauferner again deferred him from testing and notified Rachu of the deferral. Later that day he texted Tauferner that he did not have an appointment to see his physician until August 22, 2019.
On August 16, 2019, Beauchamp responded to Rachu’s August 12, 2019 request for medical information. Therein, he told Rachu “[j]ust to make things clear, I did not make a medical deferral for anything.” He then informed her that he had an appointment with his doctor for the next Thursday.
On August 22, 2019, Beauchamp’s physician, Dr. Corteen, medically cleared him to take the AJT after reviewing a report of an x-ray of Beauchamp’s right knee
On August 26, 2019, Beauchamp ran the quarter mile test in 3 minutes 40 seconds. That was 1 minute 25 seconds slower than required to pass the running test. Following his failure of the AJT, in accord with the Policy and Appendix C, Chief Gramza provided Beauchamp with light duty.
After failing the AJT, Beauchamp did not immediately seek assistance from Tauferner. He reached out to Tauferner for strengthening and conditioning assistance in mid-September. After he sought assistance from Tauferner, he worked out sporadically from September 18, 2019 until November 11, 2019, often cancelling appointments with Tauferner or not showing up for appointments, according to the reports. Tauferner documented this in a series of Intervention notes between September 16, 2019 and November 21, 2019.
Those notes reflect that between September 1, 2019 and November 7, 2019, Beauchamp met with Tauferner once every two weeks. Even though inconsistent in his efforts, during the span of time he worked out with Tauferner, Beauchamp made progress toward meeting the AJT quarter mile run standard.
On November 7, 2019, Beauchamp “unofficially” took the run portion of the AJT. While he still failed the test, he ran the quarter mile in 2 minutes 50 seconds. That was about one full minute faster than he had run the AJT on August 26, 2019. Four days later, on November 11, 2019, Beauchamp stopped working out in any way to prepare for the running test of the AJT.
Under the terms of the Policy and Appendix C, Beauchamp was required to pass the AJT by November 25, 2019 – 90 days after he failed his first AJT attempt on August 26, 2019. Beginning about November 14, 2019, Beauchamp began to assert that he was not feeling well. He told Gramza and Tauferner that he had a stomach ailment or the flu. Although he did not provide any medical information to the City that reflected any related medical restrictions from his ailment, Gramza and Rachu considered Beauchamp’s claimed gastrointestinal illness and voluntarily offered him an extension of the AJT deadline until December 6, 2019. In doing this, Beauchamp did not ask for the extension.
On November 22, 2019, Rachu sent an email to Beauchamp confirming the extension and informed him that he would need to take the AJT before December 6, 2019.
On December 4, 2019, Beauchamp came to Rachu’s office and told her that he had a medical condition for which he would be seeking treatment, that he was going to take the rest of the week off, and that he would not be available on December 5 or 6. He submitted a work excuse signed by a nurse practitioner that took him off of work until December 16, 2019, but which did not identify any medical basis for the excuse and which indicated he would have no restrictions upon his return.
He also submitted an FMLA request form to the City seeking leave from December 4, 2019 until an “unknown” date. That same day (December 4, 2019), Beauchamp also called Tauferner and informed her that he had “gone to the hospital with chest pains and high blood pressure.” He told her that an EKG had been performed and “came back with abnormalities.” He stated that he was scheduled “for a two-day stress test with dye Thursday and Friday.”
Based solely upon his representations, Tauferner granted a medical deferral. There is no record that Beauchamp took these alleged tests on the dates he indicated.
Beauchamp also provided the City with an additional work excuse taking him off work from December 13, 2019 until December 20, 2019. On December 18, 2019, the City received an FMLA medical certification from the same physician indicating Beauchamp would need to have leave until December 23, 2019, solely for the purpose of recovering from a test which showed his heart function to be normal. The certification released him to work with no restrictions on December 23, 2019. Based upon the FMLA documentation provided, the City granted FMLA to Beauchamp from December 4, 2019 until December 23, 2019.
During the period of his absence due to testing, Beauchamp did not communicate with Gramza or Rachu regarding the test date or to seek a deferral. However, following the receipt of the series of medical releases and certification, Rachu and Gramza discussed the matter of resetting the AJT testing deadline for Beauchamp. They again decided that because Beauchamp had not had an opportunity to prepare for the AJT between December 4 and December 23, it would be appropriate to provide him with additional time to prepare. They decided to provide him with an additional three weeks to prepare for the AJT.
On December 19, 2019, Rachu sent Beauchamp a letter recapping the medical information the City had received and the fact that the City had been provided no medical restrictions that would prevent him from taking the AJT. In the instant hearing, Beauchamp acknowledged that in 2019, he had not received any restrictions from his doctor regarding his knee.
He also said that the only treatment he had received for his knee was a cortisone shot administered in August 2019. As of December 23, 2019, he would be fully released. Rachu’s letter also informed Beauchamp that if he did not pass the AJT by January 10, 2020, he would be discharged in a non-disciplinary discharge per the CBA. Rachu attached a copy of Appendix C to the letter.
On December 23, 2019, Beauchamp’s FMLA leave expired. That same day, he stopped by during Tauferner’s onsite training hours at the Police Department and scheduled his test dates. He told her that he knew what he needed to do for training and would work on his own.
Beauchamp took the AJT on January 9, 2020 and again on January 10, 2020. He failed the timed run test both days. On the first day, his running time was 3:13 and on the second day it was 2:49. Prior to taking the test, he completed the routine Job Function Questionnaire,
Prior to taking the test, he completed the routine Job Function Questionnaire, responding “No” to the following questions:
- Do you currently have any condition that may prevent you from safely participating in the Job Function Test, a description of which has been provided to you?
- Do you currently have any physical restrictions that may prevent you from safely participating in the Job Function Test, a description of which has been provided to you?
- Are you currently taking any medications that may prevent you from safely participating in the Job Function Test, a description of which has been provided to you?
Following his failure of the AJT retest, Rachu and Gramza determined that they would allow Beauchamp an opportunity to discuss any additional ideas he might have regarding what might help him to pass the AJT. Accordingly, on January 13, 2020, Gramza sent a letter to Beauchamp setting a meeting on January 14, 2020 for that purpose. That meeting was rescheduled so that various Association representatives could attend the meeting.
The due process meeting occurred on January 23, 2020. Five Association representatives attended it with Beauchamp. In that meeting, no one from the Association asked for additional time to allow Beauchamp to continue to prepare or made any suggestion that would have allowed Beauchamp to continue to stay employed and try the test again. Instead, Association representatives simply argued that the job function test should not exist, and that the timed running standard should be lowered to one he could pass.
Following the meeting, the City decided to discharge Beauchamp per Appendix C and the Policy based upon his inability to pass the AJT. A discharge letter was sent to Beauchamp on January 24, 2020.
The Association grieved Beauchamp’s discharge. The grievance was subsequently appealed to arbitration.
During the hearings, Jones determined:
- That the time standard of 2:15 for the quarter mile run portion of the City’s annual job function test (AJT) was validated and job related
- That the City met its burden of proof to establish that the time standard of 2:15 for the quarter mile run portion of the AJT complied with the first paragraph of Appendix C;
- That the City did not violate the CBA when it discharged Jared Beauchamp for failing the timed run portion of the AJT; and
- That the grievance is denied.
“Physical readiness is considered a job qualification for every police officer. To do their job safely and effectively, a police officer needs to maintain a minimum level of physical readiness,” he stated. “The arbitrator chose not to validate the fitness test as a whole, rather to examine the quarter mile run. In the report, he determined that a short sprint run is a crucial physical task that is essential for a Wisconsin patrol officer, the distance is appropriate given it is the length an officer would run before deciding to end a foot chase, and the time was determined using actual data from MPD officers.”
Jones also determined that the City met its burden of proof to establish that the timed quarter mile run at 2:15 portion of the fitness test met the standard set.
He stated: “Second, I find that the City was entitled to terminate Beauchamp for failing to maintain the minimum level of physical readiness required by the City in order to do his job safely and effectively. His failure to pass the quarter mile timed run at 2:15 established that he didn’t have the minimum level of fitness required of a Marshfield police officer under the AJT.”
He continued: “It would be one thing if Beauchamp had put forth a sincere, good faith effort to meet the timed running standard. However, it appears from the record that Beauchamp decided he could not and would not pass that portion of the AJT from its inception, without even attempting a practice test.
“He also disregarded and failed to use the free training assistance from Tauferner to prepare for the first test. About a month after his initial AJT failure, he sought minimal assistance. He put forth an inconsistent effort that lasted for just a seven-week period during the four and a half months he was given to retake the test.
“Inexplicably, just when he started to show significant progress toward passing the timed run portion of the AJT by running almost a minute faster than he had previously, he ceased using her assistance and stopped working out to prepare for the AJT re-test. At the hearing, he admitted that on November 11, 2019, he stopped preparing in any way toward passing the AJT. It is unclear why he did that. Nonetheless, by stopping working out, he ensured the failure he had predetermined because, as he admitted at the hearing, he believed that he should have been the exception to the quarter-mile timed run qualification. Thus, Beauchamp thought he should not be required to meet the timed run standard of the AJT because he could not perform that task. That’s problematic, of course, because it means that Beauchamp believes he is not accountable to the City for his lack of minimal physical readiness. However, he is. ”
He added that the City provided support “above and beyond” to help Beauchamp achieve.
He stated: “Immediately after Beauchamp failed the AJT time running test, he was placed on a light duty position. While he was on light duty, the City allowed him to meet with Tauferner for conditioning during work hours. Additionally, the City gave him not one, but two, extensions of the re-test deadline. The City offered these extensions despite Beauchamp not seeking them himself, and also not providing medical evidence of any medical restrictions that were impacting his ability to be successful. In fact, his orthopedic physician had fully released him to work in April 2019, and in August 2019 had released him to participate in the AJT. Thus, Beauchamp did not present a situation where there was a medical basis for which a reasonable accommodation might be required by law as identified in the CBA. ”
He also determined the following:
“I find that Beauchamp was not discriminated against or treated unfairly in either the testing process or in his termination. My basis for so finding is as follows. Beauchamp is not an individual with a disability under any law. Thus, the City did not discriminate against him in the job function testing process or otherwise. In addition, the CBA does not provide for litigating discrimination cases through the grievance procedure. The Association’s remote reference to the Management Rights clause allowing the City to exercise its rights does not provide the jurisdiction they seek.
An individual simply being overweight, obese or out of shape does not mean he or she is disabled under any stretch of the law. ”
Jones also addressed Beauchamp’s line-of-duty injury:
“In its brief, the Association described the ‘injury’ as follows: ‘While there have been other officers whose ailments were fleeting and minor in nature, and thus they were able to tune themselves up well enough to pass the test, the Grievant’s injury was not minor, nor was it fleeting.’ … Based upon that language, one would think that Beauchamp had incurred a traumatic life-long injury as the result of a tragic on-duty incident.
“However, the facts are quite different. In fact, the ‘line of duty’ in which Beauchamp was engaged was getting dressed for work. The facts of his injury are that on October 23, 2012, he came to work, and instead of having completed getting dressed and putting his duty shoes on at home, he waited until he got to work to do so. In Beauchamp’s own words, here is what happened:
While getting ready for duty, I was stretching my right knee due to the knee being
stiff from a prior strain which occurred several weeks prior to this date. I pulled my
lower right leg into the hamstring stretching the knee putting my footwear on. I
suddenly felt extreme pain in the knee along with burning sensation, leaving me
with limited movement and pain to the right knee.”
Jones added: “More significantly, Beauchamp’s own testimony undermines the Association’s ‘assumption’ that he is disabled in any sense of the word. At the hearing Beauchamp admitted that he had no physical restrictions and was fully released to work. Additionally, he signed documents indicating the same. That means Beauchamp was not an individual with a disability. Instead, he was simply unfit and had convinced himself that no amount of effort would change that reality.”
Jones also determined that “the City complied with that process when it terminated Beauchamp after he failed the timed run component of the AJT. He was not treated unfairly by the City. Officers who had difficulty with the test were given individualized training. Those that took advantage of that training passed the test. The City provided Beauchamp even more time, leeway and opportunity than any other officer to pass the test. However, he elected to decline the individualized training offered to him and stopped training altogether. Subsequently he failed the required timed run portion of the test. By the clear language of Appendix C, that resulted in his non-disciplinary termination. Consequently, the City did not violate the CBA by terminating Beauchamp for failing the timed run portion of the AJT. He was required to run a quarter mile in 2:15 and he did not do so. ”
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