Former cop who failed fitness test sues Barnstead for gender & age discrimination

BARNSTEAD — A former full-time police officer who was discharged because he couldn't pass the physical fitness test filed a civil suit on July 26 in Belknap County Superior Court against the town, the state, and the state of New Hampshire.

David Scott has asked for his reinstatement as a full-time police officer, for back-pay with interest, for his certification as a full-time police officer, and for pain and suffering. The amount is unspecified.

He has also asked a court to order the all of the defendants to create and enforce policies and practices that provide equal opportunity for all potential police officers.

His primary argument for the lawsuit is that N.H. Police Standards and Training established basic minimum physical standards for men that differ from those of women — or, reverse discrimination — and he claims he was fired from his full-time position because of those standards.

This is Scott's second lawsuit concerning his dismissal from the Barnstead Police Department for being unable to pass the running portion of the fitness test. His first suit, filed in U.S. District Court, District of New Hampshire against N.H. Police Standards and Training, or the police academy, was dismissed in March of 2013 by a Judge Paul Barbadoro who ruled that Scott was suing the wrong party because he was not employed by them.

In his ruling Barbadoro agreed with the Police Academy who successfully argued that Scott's claim should be against his employer — the town of Barnstead — and not them. Barbadoro did not address the merits of Scott's suit.

Scott failed the running portion of his test by 11 seconds and claims that women have two minutes longer to complete the same test. His full-time employment in Barnstead was conditional upon his certification from N.H.P.S.T., which is the only police certification agency in New Hampshire. On May 5, 2011 N.H. P.S.T ordered Barnstead Police Chief Kenneth Borgia to reduce Scott's status from full to part-time.

Scott appealed to the N.H.P.S.T. Commission for a waiver in December of 2011 but it was denied.

According to his pleadings, Scott attended the full-time academy in late 2009 after being employed as a part-time officer in Barnstead for about two years. He said he tried 10 times to complete the 1 1/2 mile run in under 14 minutes and 44 seconds but his best time was 11 seconds off the mark. His status as a full-time officer was reduced back to part-time and part-time police officers are limited by statute and state rules to working no more than 1,300 hours annually.

His latest suit claims the standards set by New Hampshire are arbitrary and discriminatory based on age — Scott is 52 — and gender.

Police standards and training adheres to the physical standards established by Cooper Institute of Aerobics and has done so since 1992. In their motion to dismiss Scott's federal suit, N.H.P.T.S. said Scott is one of four officers who has failed the test in the past five years.

Scott is representing himself.

None of the respondents have yet filed responses to the Belknap County suit.