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Arbitrator rules termination of former Marshfield police officer was justified following failure of mandatory fitness standard test

State arbitrator rules Marshfield officer will not get job back after failing fitness test
State arbitrator rules Marshfield officer will not get job back after failing fitness test
Published: Jun. 15, 2021 at 9:58 PM CDT
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MARSHFIELD, Wis. (WSAW) - More than six months after a former Marshfield police officer filed a grievance against the city for being terminated for failing a required fitness test, the Wisconsin Employment Relations Commission’s appointed arbitrator denied his grievance.

Jared Beauchamp was fired from the Marshfield Police Department on January 24, 2020 after failing the city’s mandatory annual fitness test for officers, specifically the requirement to run a quarter of a mile in 2 minutes and 15 seconds. He passed all other requirements (see full test here and job function description here). Beauchamp is the first to be terminated since its implementation at the Marshfield Police Department in May of 2019. He had been an officer at the department for approximately 20 years.

The arbitrator, Raleigh Jones made four determinations related to the grievance former officer Jared Beauchamp filed against the City of Marshfield as stated in the arbitration award document (AAD):

1. That the time standard of 2:15 for the quarter-mile run portion of the city’s annual job function test was validated and job-related;

2. 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 annual job function test complied with the first article of Appendix C (the portion of the police union’s 2018-2020 collective bargaining agreement related to the annual job function test);

3. That the city did not violate the collective bargaining agreement when it discharged Jared Beauchamp for failing the timed run portion of the annual job function test; and

4. That the grievance is denied.

See provisions in the collective bargaining agreement Jones cited as pertinent to this case here.

Jones determined that the city went beyond what was required to give Beauchamp an opportunity to pass the fitness test, specifically the running requirement, but Beauchamp did not take full advantage of the resources provided to him to meet the standard.

Jones’ ruling is a more narrow determination than what the city and the local and state police unions (Marshfield Police Protective Association and Wisconsin Professional Police Association) were asking Jones to rule on, but he determined these items were the necessary ones to rule on in Beauchamp’s specific case.

“I’ve decided that the only part of the AJT (annual job function test) that needs validation in this case is the timed run portion of the test (specifically the requirement that officers run a quarter mile in 2:15 or less),” Jones stated in the AAD. “The reason I made that finding is because that was the only portion of the test that Beauchamp failed.”

The parties had asked Jones to rule on the fitness test’s validity in its entirety because it would determine whether the policy should remain and whether it is a policy other law enforcement agencies could model. The city’s stance is that it is a valid policy, while the local and state unions do not. 7 Investigates previously reported that several other area departments are closely monitoring what happens with this fitness requirement, noting fitness is important to the job.

The WPPA’s executive director, Jim Palmer provided comment in response to the ruling:

“(W)hile we are certainly disappointed, I continue to believe that the decision was very narrowly tailored. As you can see, the city wanted the arbitrator to approve of Marshfield’s mandatory physical fitness test in its entirety. Rather than do that, the arbitrator confined his ruling on... Jared Beauchamp and the specific timed running event that he did not pass. While the arbitrator did not agree with our argument that the running test was arbitrary, he also refused to weigh in on the test as a whole. In that way, the decision offers little guidance to agencies considering implementing one of their own.

The Wisconsin Department of Justice has a very cumulative fitness test, and we continue to believe that the test in Marshfield wasn’t properly validated. Marshfield spent enormous resources creating and defending their own standard when they could have adopted what already is available from the states’ (standard). Moreover, mandatory fitness tests are very expensive and expose municipalities to a variety of costly financial liabilities, especially in terms of higher worker’s compensation costs. It is more likely that these costs, in conjunction with a lack of guidance as to what constitutes a valid fitness test, will continue to be obstacles to agencies that attempt to impose mandatory fitness standards, as opposed to those that reward officers for meeting certain standards. The latter have proliferated throughout the state, and they don’t pose the same worker’s compensation costs as the former.”

Rick Gramza, the former police chief who implemented the policy told 7 Investigates the policy was created for the safety of officers and the public and that it “is not an all-encompassing assessment of an officer’s abilities but it is one which evaluates one’s physical ability.” He asserts the test was validated and officers with conditions or who needed accommodations were granted that assistance.

7 Investigates reached out to MPPA, which deferred any comment to the WPPA. Beauchamp, the city, and the former PFC president Randy Gershman declined to comment.

Following Beauchamp’s termination last year, MPPA members and other community members rallied together to get Beauchamp reinstated. Since he was fired, his termination and the mandatory fitness test have been an underlying point made in every major issue facing the City of Marshfield over the last year. That includes during the city’s process to remove Gramza and in court for his sexual assault case, during the process to remove mayor, Bob McManus, as well as complaints Marshfield citizens brought against the fire and police commission and city council members. Stakeholders on all sides of the various issues who have spoken to 7 Investigates have pointed to this policy as being a thread that connects all of those major complaints within the city.

Developing the fitness test

According to the AAD, Marshfield is one of 10 communities in the state where the fire and police commission has optional powers, unlike other police and fire commissions with more limited powers. “...the Marshfield PFC has total control over the management and operation of the Police Department,” the document states adding that the PFC is not a part of the collective bargaining agreement involved in Beauchamp’s grievance.

Chief Gramza notified the entire police department in December 2015 that he planned to implement a job function test for officers, with the original vision of the test being voluntary. However, the AAD states, that by 2016 it was planned to be a mandatory test. The PFC gave Gramza approval to contract a professional testing provider to create and validate a job functioning test in March 2016. With PFC approval, the city hired Traci Tauferner, a licenced and certified athletic trainer and strength and conditioning specialist who had created job functioning tests for other police and fire department around Wisconsin.

Starting in June 2016, Tauferner worked with Gramza and other officers to identify the physical job demands of a police officer in Marshfield and create a fitness test and validate that fitness test to ensure the requirements were reasonable and fit the job description. The test was modified throughout that period, with comments from MPPA leadership at the beginning of the process. All officers were required to do a test run in March 2017 and provide feedback unless they had a medical excuse or other “extenuating circumstances.” Officers were paid for their time during that test.

The distance for the running test was determined to be a quarter of a mile, which according to the AAD is about three city blocks, because that is about the distance where officers would determine whether to end a foot chase. The way the time was determined, according to the hearing transcript cited in the AAD, was by asking officers to run that distance “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.”

About 80% of the officers were able to complete the run in 2:08 minutes and about 90% of the officers were able to complete the run in 2:15 minutes, which is what Gramza ultimately set as the standard.

The testing requirements were finalized in August 2017, which Jones noted, “was a significantly easier test than the initial test.” During a practice test of the finalize requirements, two of 33 officers who participated failed the test.

Jones stated in the AAD that Gramza communicated through email and at every annual meeting since Dec. 2015 about the development and components of the test, the changes made, and reminding officers of the practice test dates. The city also negotiated a free membership at a local gym, allowed officers to work out on duty during normal, paid work hours, had free access to Tauferner’s athletic training and sports medicine services, and off-duty officers were paid an hour of overtime during the 15-20 minute test. Tauferner also provided a six-week exercise and strengthening program designed to assist officers to pass the fitness test during the validation process in March 2017.

The PFC adopted the fitness test requirement in March 2018 during a public meeting. Jones states the MPPA did not appear at that meeting to object to the policy nor has filed a challenge against the PFC’s authority to adopt it. The MPPA’s position in Beauchamp’s case aligns with the WPPA’s that it is not a valid test and is discriminatory.

The union attempted to make some changes during negotiations with the city in 2017-2018 for the 2018-2020 collective bargaining agreement, but the requirements largely remained the same according to the AAD. One MPPA proposal during those negotiations was to have the test standards incorporated into the CBA so that the standards would not “change over time or get harder.” That request was not incorporated because, by law, the PFC has control of the department’s standards, not the city.

Several other proposals the MPPA bargained for were rejected for the same reason or were just rejected in general, including a proposal with “language reflecting that the testing standards do not constitute essential job functions required for a Marshfield police officer,” and similarly, “that the testing standards do not constitute essential job functions under the just cause standards of Wis. Stat. § 62.13.” It also offered language and concerns related to what happens to officers who fail the test, which were rejected in part because the policy already had a provision about the chief using discretion with those officers.

What was added to the CBA was allowing officers preparing for the annual test to get workers compensation if injured while working out, allow officers to work out on duty time to prepare for the test, and allow officers to purchase fitness clothing or equipment with their uniform allowance. WPPA filed arbitration to assist in this negotiation in June 2018 where the city accepted the terms listed as Appendix C.

Off. Beauchamp’s tests

The AAD notes officers had five opportunities to take the practice tests between Aug. 2018 - April 2019 before the test was effective in May 2019. Officers were required to go to one practice test. Of the 39 officers who took the practice test during that window, one officer failed.

According to the AAD, Beauchamp did not participate in any validation tests during development and did not take a practice test after telling Tauferner his knee brace was not fitting properly on the last day of practice testing. According to the AAD, Beauchamp was out for non-work-related shoulder surgery to full duty without restrictions about three weeks before the real test was fully implemented. The AAD did not state how long he was out for that surgery.

When the full test was implemented, four officers failed their first attempt, one being Beauchamp. According to the AAD, two officers worked with Tauferner immediately after failing to build up strength and conditioning and passed in their second attempt. One officer worked out on her own and passed a week later.

Beauchamp was notified that his testing date would be Aug. 14, 2019. Jones states Beauchamp declined Tauferner’s offer to help him prepare for the test in July.

Two days before he would test, Jones states Beauchamp sent an email to Gramza and the human resources director, Jennifer Rachu, asking for accommodation for the running portion of the test “due to a work-related knee injury and the aggravation and pain caused by running.” He asked to substitute a swim or bike test for the run.

According to the hearing transcripted cited in the AAD, this is how Beauchamp described his work-related knee injury from 2012:

“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 states Beauchamp received workers compensation for the injury at the time and that the workers compensation forum noted that “he fully recovered and no ‘injury’ exists.” According to Jones, Beauchamp said in the hearing that his doctor had not given him any medical restrictions related to his knee and that the only treatment he had for the injury was a cortisone shot in Aug. 2019. A comment mentioned in the AAD from Beauchamp’s doctor stated he may never be able to successfully complete the timed run test.

In regards to the request for accommodations ahead of the test, Jones states Beauchamp did not provide documentation of any medical restrictions. Beauchamp told Rachu that he contacted his physician the day before. Later he notified Tauferner and Rachu that he did not have an appointment to see a physician until about a week later. His doctor cleared him to take the test and Tauferner rescheduled his test for a few days later.

In his first attempt at the test, he ran 1 minute and 25 seconds slower than required to pass the test. Gramza then put him on light duty, as mentioned in the policy and would need to retest within 90 days. A few weeks after failing the test, Beauchamp reached out to Tauferner to get strengthening and conditioning assistance.

Jones states, however, that he worked out sporadically during the 90-day window and often canceled appointments with Tauferner or just did not show up for appointments, which Tauferner documented. That work did improve his “unofficial” testing time more than a minute faster than his initial test. Jones notes that Beauchamp stopped working out four days after that “unofficial” test.

Nearly two weeks before his scheduled second test, Beauchamp told Gramza and Tauferner that he was not feeling well, and had a stomach ailment or the flu. He did not provide medical information that would show any medical restrictions preventing him from taking the test, but Jones states Gramza and Rachu considered his concerns and extended the deadline to test until the beginning of December. Beauchamp had not asked for an extension.

Two days before he was going to test again, he told Rachu that he had a medical condition he was going to be getting treatment for and would be gone the rest of the week. He submitted a work excuse form signed by a nurse practitioner to have him out for a little more than a week. The form did not note the medical reason for the excuse, but it did state he would have no restrictions when he returns. He also submitted a family medical leave request the same day with no return date specified. He later texted Tauferner that he was going to the hospital after an echocardiogram showed abnormalities and that he was scheduled for a two-day stress test. According to Jones, he did not provide the city with documentation for these tests.

However, his physician submitted an additional FMLA request about a week later saying Beauchamp would need to remain on leave until Dec. 23, 2019 to recover from a test that showed his heart function was normal. He was released with no medical restrictions after his leave.

Jones states Beauchamp did not communicate with Gramza or Rachu regarding the test date or to seek a deferral, but Gramza and Rachu decided since Beauchamp had not had the opportunity to prepare for the fitness test for nearly a month that it would be appropriate to give him three additional weeks to prepare. Rachu notified Beauchamp of his new testing date of Jan. 10, 2020 and informed him that “he would be discharged in a non-disciplinary discharge per the CBA.” Upon return, Beauchamp told Tauferner that he would work out on his own to prepare.

He took the test on Jan. 9 and Jan. 10 and failed the timed run test on both days, clocking in at 3:13 and 2:49 respectively. In the questionnaire ahead of the tests he did not indicate any conditions that would prevent him from taking the test.

Jones states Gramza and Rachu sent a letter to Beauchamp asking for a meeting with the intention to give him the opportunity to discuss any additional ideas he might have in order for him to pass the test. Beauchamp along with five MPPA representatives attended the meeting and according to Jones, the MPPA did not ask to allow Beauchamp to have additional time to prepare for the test nor “made any suggestion that would have allowed Beauchamp to continue to stay employed and try the test again. MPPA members, instead argued that the test should not exist and that the timed run standard should be lowered to one Beauchamp could pass. Following the meeting, the city determined to terminate Beauchamp for his failure to pass the fitness test.

Outside of the grievance MPPA filed on Beauchamp’s behalf for his termination, Jones states:

“The record shows that Beauchamp never filed a civil rights charge or complaint against the City alleging that his discharge was discriminatory or retaliatory under State or Federal law. Additionally, the only legal challenge the WPPA filed against the City’s use of the AJT (test) was a Charge of Discrimination it filed with the EEOC on November 20, 2019. The charge filed by WPPA challenged the practice of the tester taking an officer’s blood pressure as part of the AJT (test) pretest screening. The charge was dismissed by the EEOC on August 14, 2020. WPPA did not challenge the dismissal.”

Jones dismisses the argument that the policy is discriminatory as it applies to Beauchamp’s case since he was medically cleared numerous times to return to fully duty after his knee injury and other medical-related incidents.

Gramza responded to 7 Investigates’ request for comment stating:

“(T)he Marshfield PD job function test (JFT) was implemented to ensure officers are able to meet a minimum physical readiness standard to best serve the community we are sworn to protect. This is not an all-encompassing assessment of an officer’s abilities but it is one which evaluates one’s physical ability. This test is valid and was appropriately validated by staff and fitness professionals. If anyone necessitated special medical or physical accommodations, those accommodations would have been granted to comply with ADA requirements. As can be seen by reading the arbitrator’s opinion, Beauchamp failed to properly prepare and take advantage of assistance and there was no accommodation necessary yet I and the city afforded Beauchamp every opportunity to be successful, the rest was up to him by taking advantage of those opportunities offered. I feel this is a win for the city but also for any community which chooses to implement such a standard, in that we can be assured that each officer from the highest executives to our newest hires will be required to maintain a minimum physical readiness standard throughout their career.”

According to complaint records filed against Gramza 7 Investigates obtained, Beauchamp had made several formal complaints to human resources against Gramza and other superior officers. When the fitness test policy was being discussed, Beauchamp submitted a complaint in 2016 stating that he believed his sergeant at the time was approached to write or comment about his weight in relation to job performance. His sergeant told him he was asked by Gramza and the assistant chief to monitor what Beauchamp ate at work, which he indicated he would not do.

Beauchamp also noted that he does not like to talk with Gramza and the assistant chief because over the last two years about every two weeks or every month they ask him about his weight. Beauchamp told the human resources director that his sergeant told him Gramza had asked why fitness goals had not been added to Beauchamp’s performance review goals. Beauchamp noted he asked other individuals who he considered overweight at the department if they had been asked about weight loss or fitness goals, and his understanding is they had not been asked.

In that complaint he noted it is hard for him to lose weight in part due to rotating shifts, which he said does not enable him to eat normally, screws up his “cycle,” he never is “normal,” that it takes four to six weeks to feel good and that once he feels good, he starts to work out until his schedule flips again.

He noted in the complaint that Gramza and the assistant chief tell him that they care for him, but Beauchamp said having other people monitor his eating and his weight creates a hostile working environment. He stated to human resources that his goal with coming forward with the complaint was that the questions about his weight stop and that a fitness goal is not included in his performance evaluation. Human resources noted in the complaint that follow with Gramza and the assistant chief was done separately. Rachu followed up with Beauchamp a few months later to see if he still had concerns.

“Regarding Beauchamp’s fitness and weight,” Gramza told 7 Investigates, “I only had his best interest in mind regarding his ability to keep himself, his co-workers, but especially the community safe. It is my perception that I and the police and fire commission were more concerned about his ability to do the aforementioned items than he was.”

In March 2019, Beauchamp filed another complaint against Gramza for creating “a hostile work environment through micromanagement of work, surveillance of video, accusations of theft, and previous lack of advancement opportunities.” Rachu stated in a memo about the result of the investigation that after interviewing employees with knowledge of the situation, she found that no city policies were violated,” but reflected a need to improve communication between yourself (Beauchamp) and Chief Gramza.”

Attached to that complaint was a photo of an email Gramza sent to the full department stating “To the one who feels the need to post articles related to sleep deprivation in the overtime book... (the photo cuts off part of the email) You are undermining the organization. You are part of a profession which often necessitates this type... (email is cut off)... unfortunately, occasional sleep deficiency. It is not a profession for the weak and if you are truly that... (email is cut off) ...many professions which allow for you to obtain 8 hours of sleep each night. Please see me if you need... (email is cut off).”

Also attached are notes Gramza provided involving Beauchamp, which documented several instances when Beauchamp was not working from Jan. through Feb. 2019. It included Beauchamp taking nearly an hour for a bathroom break and a long lunch. The note also states that on Jan. 30, 2019 Beauchamp did not want to come to work in case his pipes at home burst. In addition, it mentioned he would pick his children up from school while on duty, and when he was having truck problems that he had to come into work late despite being offered a ride, and the notes state he was unaccounted for several hours during work time.

This story will be updated as more information and responses from those involved are gathered.

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