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Jones v. City of Boston
Citations: 118 F. Supp. 3d 425; 2015 U.S. Dist. LEXIS 103333; 2015 WL 4689428Docket: CIVIL ACTION NO. 05-11832-DPW
Court: District Court, D. Massachusetts; August 6, 2015; Federal District Court
Ten black plaintiffs filed a racial discrimination lawsuit against the Boston Police Department (BPD), the City of Boston, and its Commissioner, challenging the hair drug testing implemented by the BPD from 1999 to 2006. The BPD mandated yearly hair samples for drug testing, resulting in a higher percentage of positive cocaine tests among black officers and cadets (1.8%) compared to white officers and cadets (0.3%), despite a majority of the tested individuals being white. The testing was governed by Rule 111 of the BPD’s collective bargaining agreement with the Boston Police Patrolmen’s Association, which specified that hair testing procedures were to be followed. Positive test results were reviewed by a physician, and individuals could request a confirmatory "safety-net test," although specific levels for this test were not established in union negotiations. Those testing positive faced severe consequences: first-time offenders could opt for a 45-day unpaid suspension and drug rehabilitation instead of termination. The plaintiffs included former officers and a cadet who were terminated, one who chose rehabilitation, and an applicant whose job offer was rescinded. All plaintiffs denied cocaine use and contended that the hair tests produced false positives, particularly affecting individuals with African-American hair. They alleged violations of Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Equal Protection Clause under 42 U.S.C. § 1983, and Massachusetts law. Judge O’Toole granted summary judgment to the BPD, ruling that the plaintiffs failed to establish a prima facie case of disparate impact under Title VII. The plaintiffs appealed, and the First Circuit partially reversed and affirmed the ruling. The First Circuit reversed the summary judgment granted to the Boston Police Department (BPD) and instead awarded summary judgment to the plaintiffs regarding their prima facie case of disparate impact. The court clarified that practical significance does not factor into establishing a prima facie case; a lack of practical significance does not prevent reliance on competent evidence of statistical significance. While the First Circuit dismissed all other claims, it left unresolved whether the challenged practice was job-related and consistent with business necessity, and whether plaintiffs proposed an adequate alternative practice with less disparate effects. The case was remanded to the district court for these determinations. Concurrently, five plaintiffs also appealed their terminations to the Massachusetts Civil Service Commission, which ruled that hair drug tests alone could not justify the discharge of a tenured officer. The Commission's decision, which reinstated some officers, was upheld by Suffolk Superior Court, and the BPD has appealed this ruling to the Massachusetts Appeals Court. With the First Circuit's ruling establishing that the plaintiffs have made a prima facie showing of disparate impact, the burden shifts to the BPD to prove that its practice is job-related and necessary for business. If the BPD meets this burden, the plaintiffs must then demonstrate an alternative practice that has a less discriminatory effect. The BPD has moved for summary judgment again under Rule 56(c), which allows for such judgment when there are no genuine material factual disputes. The assessment involves determining if there is sufficient evidence for a reasonable jury to favor the nonmoving party, with all facts and inferences viewed in favor of the plaintiffs. The plaintiffs indicate they are not seeking summary judgment but note potential issues that might lead the court to grant judgment in their favor. Job-relatedness for the Boston Police Department (BPD) focuses on whether drug testing is essential for assessing work behavior in law enforcement. Plaintiffs acknowledge the importance of drug testing for officers and do not contest its job-related nature. The BPD must demonstrate that drug testing results are significantly correlated with officers' drug use to satisfy business necessity. The plaintiffs invoke issue preclusion based on a previous ruling by the Massachusetts Civil Service Commission regarding hair drug testing from 1999-2006. In that case, ten tenured black officers were terminated after positive hair tests for cocaine. They challenged the adequacy of hair tests as a basis for termination under Massachusetts law. The Commission, after extensive hearings, concluded that while the BPD was justified in enforcing drug policies, positive hair tests alone do not definitively prove drug ingestion due to concerns about contamination and lack of standardization in testing. Consequently, the Commission reinstated six officers, including five plaintiffs, while the BPD's appeal to the Suffolk Superior Court upheld the Commission's decision, granting back-pay and benefits to the reinstated officers. The Boston Police Department (BPD) has appealed a Superior Court decision regarding the reliability of hair drug tests to the Massachusetts Appeals Court (Boston Police Dept. v. Civil Service Commission, No. 2015-P-0330). Plaintiffs assert that the BPD is barred from rearguing the reliability of these tests, as a prior decision by the Massachusetts Commission Against Discrimination (MCAD) deemed them insufficiently reliable. Under Massachusetts law, state agency decisions can have preclusive effects if certain criteria are met: there must be a final judgment on the merits, the party against whom preclusion is asserted must have been a party to the prior adjudication, and the issues in both cases must be identical. A judgment can still be deemed final even if an appeal is pending. The core disagreement centers on whether the issue of reliability in the previous case is identical to the current matter. Although plaintiffs acknowledge differing legal standards—"just cause" in the Commission versus "business necessity" here—they argue that the factual findings on hair test reliability should prevail. They cite the Commission's conclusion that hair drug testing does not meet the reliability standards needed for termination of tenured public employees. The plaintiffs contend that the fundamental concern regarding the reliability of hair drug tests remains unchanged despite different legal standards, which should allow for issue preclusion. The central legal question linking both decisions is whether the BPD had just cause to terminate officers based solely on hair drug tests. The hearing before the Commission primarily examined the reliability of hair testing conducted by Psychemedics, specifically its ability to differentiate between drug ingestion and environmental exposure. Key findings included scientific disagreements over the accuracy of hair drug tests, the absence of national standards, and the conclusion that hair test results do not meet the reliability standard for terminating a tenured public employee under Massachusetts civil service law. The Commission determined that hair test results alone could not serve as sufficient grounds for termination due to potential uncertainties surrounding their conclusiveness. The Commission and the Superior Court emphasized that while positive hair tests are not definitively indicative of drug ingestion, they do not negate the necessity for the Boston Police Department (BPD) to consider additional evidence in termination decisions. Though the hair tests were acknowledged to have limitations, they were nonetheless deemed useful in identifying officers who might be suspected of drug use. The factual findings from the Commission were found to both support its conclusions and undermine the plaintiffs’ claims, illustrating that the hair tests, while not 100% reliable, could still serve as a significant evidence piece in assessing drug use. Furthermore, the Commission's findings related to business necessity were clarified, indicating that the validity of an employment selection device, such as drug testing, hinges on its predictive capability regarding essential work behaviors, which in this context involves maintaining a drug-free workplace. The First Circuit expressed skepticism about the sufficiency of the plaintiffs' evidence against the BPD’s claims regarding the necessity of hair drug testing. Issue preclusion was deemed inapplicable, allowing the BPD to reexamine the correlation between hair drug tests and officers' drug use. Plaintiffs failed to provide sufficient evidence for a jury to determine that the drug testing used is so unreliable that results are irrelevant to actual drug use. Their evidence only raises concerns about the accuracy of some results, without demonstrating a significant number of false positives relative to the police force size. The burden lies with the Baltimore Police Department (BPD) to prove the business necessity of these tests. From 1999 to 2006, the BPD conducted 15,057 tests, with only 85 positive results reported. Among 4,222 black officers tested, 55 tested positive for cocaine, which plaintiffs argue may include false positives due to racial disparities. The BPD asserts the number of actual users is lower since some officers signed rehabilitation agreements acknowledging drug use. However, plaintiffs contest this, claiming coercion to sign the agreements to retain their jobs. The court dismissed BPD's method of reducing potential false positives based on these agreements. Debate exists over the scientific acceptance of hair drug testing. Plaintiffs cite the federal government's decision against using hair testing in workplace programs and its failure to establish standards after extensive study. They also reference the Society of Forensic Toxicologists' stance that hair analysis alone isn’t adequate evidence of drug use. There are no national standards or certified labs for hair drug testing. Conversely, defendants highlight that Psychemedics holds forensic drug testing accreditation and has never failed any certification exams. Plaintiffs’ criticisms of hair testing reliability primarily center on contamination risks rather than the test's accuracy in detecting drug presence. The Psychemedics hair drug test reliably detects cocaine and its metabolites at the specified cut-off level, which is acknowledged by both parties. Although plaintiffs' expert, Dr. Walsh, conceded the test's reliability, he raised concerns about potential contamination leading to false positives, particularly for individuals frequently exposed to cocaine in their environment. The BPD asserts that Psychemedics’ decontamination procedures effectively mitigate contamination risks, employing a detailed five-part washing process designed to eliminate external cocaine before analysis. This process involves a vigorous wash with isopropyl alcohol followed by multiple phosphate buffer washes, with the final wash being analyzed and its results adjusted to account for potential residual contamination. The BPD cites studies supporting the effectiveness of these decontamination measures, while plaintiffs argue that such studies may not reflect real-world conditions, particularly regarding timing between contamination and decontamination. Plaintiffs also challenge the test's ability to differentiate between ingestion and mere exposure, citing expert opinions that metabolites can arise during washing or due to impurities in street cocaine. A 2009 Department of Justice report raises further doubts about using metabolite ratios for this purpose. Despite these concerns, some plaintiffs' experts recognize that the decontamination process significantly reduces contamination, with estimates suggesting a removal rate of 83% to 97%. The plaintiffs’ main contention revolves around contamination that penetrates the hair's cuticle and affects the cortex, where cocaine can bind to melanin, leading to higher detectable levels in individuals with darker hair due to environmental exposure. Cocaine can penetrate the cortex of hair only if the cuticle is damaged, which Dr. Kidwell asserts is more likely in African-American officers due to their cosmetic hair treatments. Such treatments often damage the cuticle, allowing cocaine to bind to melanin more easily. Additionally, the use of oily and glycerol-containing products exacerbates this issue, as oil can concentrate cocaine and glycerol can facilitate drug transfer. Defendants argue that the correlation between hair treatments and drug absorption is speculative and lacks substantial empirical support. The terms "business necessity" and "job related" lack clear legal definitions but were addressed in the Civil Rights Act of 1991, which endorsed standards from Supreme Court cases like Griggs v. Duke Power Co. and Albemarle Paper Co. v. Moody, while rejecting a less stringent interpretation from Wards Cove Packing Co. Inc. v. Atonio. The Griggs standard requires employers to demonstrate that a challenged practice is a reasonable measure of job performance and relevant to the specific job. Albemarle emphasized that discriminatory tests must be shown, through professional methods, to be predictive of important job behaviors. The law does not demand perfection from a test; it can have an error rate yet still be significantly correlated with job functions. The required correlation degree is flexible and depends on the adverse impact of the test. Courts have allowed greater leeway for tests related to public safety, indicating that a test's potential for improvement does not negate its validity if it reliably predicts job suitability. The primary concern in evaluating a selection method’s validity is its ability to accurately assess candidates for the job. Plaintiffs claim that the hair drug test's failure to detect all instances of external contamination renders it unreliable and not significantly correlated with drug use. This stance is based on an all-or-nothing perspective of reliability. However, the assessment of job-relatedness allows for a reasonable error rate as long as there is a significant correlation between the test results and job requirements. The First Circuit, in Jones, indicated that plaintiffs' evidence only raises concerns about some results without demonstrating a substantial number of false positives among the police force. The summary judgment record shows that plaintiffs have not provided sufficient evidence for a jury to conclude that the hair drug test is not predictive of drug use. A positive hair test for cocaine, regardless of the source, is still indicative of a higher likelihood of drug use compared to a negative test. As testing processes improve, the likelihood of false positives decreases, even if absolute accuracy is unattainable. Once a significant correlation threshold is established, further enhancements to the test relate to superior alternatives rather than business necessity. The evidence shows that the hair test reliably detects cocaine at 5 ng/10 mg. The plaintiffs do not contest that their hair samples tested positive, nor do they dispute the negative results of those who tested negative. Dr. Kidwell, the plaintiffs' expert, acknowledged that Psychemedics' decontamination procedures eliminate a significant percentage of environmental contamination. Although plaintiffs dispute whether these procedures can fully remove cocaine bound to hair, they have not provided evidence of significant occurrences in practical scenarios. They assert that cocaine can penetrate damaged hair cuticles and argue that African-American hair may be more prone to damage, but they lack evidence that the plaintiffs had treated or damaged hair. The BPD's data indicates that the effect of external contamination is minimal after decontamination. None of the eight plaintiffs who tested positive had previously tested positive for cocaine, nor have any officers in the BPD's Drug Control Unit or Evidence Management Unit, which handles drug evidence, ever tested positive. Plaintiffs’ experts recognize the validity of hair drug testing as a screening tool for identifying drug use among officers, supported by Dr. Kidwell's suggestion to include it in a superior alternative. Despite evidence from the BPD demonstrating the reliability of hair drug testing for cocaine detection and the effectiveness of decontamination procedures, plaintiffs' concerns regarding potential contamination do not significantly undermine this reliability. To succeed, plaintiffs must prove the existence of a viable alternative employment practice that has less disparate impact and meets the employer's legitimate needs, as outlined in 42 U.S.C. 2000e-2(k)(1)(A)(ii) and relevant case law. The burden shifts back to the plaintiffs at this stage, requiring them to substantiate their claims with concrete evidence rather than speculation. The First Circuit mandates a high standard, often necessitating extensive data to demonstrate that a proposed alternative would have a smaller impact. Plaintiffs' statistical expert, Sharon Kelly, failed to analyze alternative drug tests, focusing solely on BPD's hair test results from 1999-2006, and did not consider modifications to testing procedures made in 2007. The plaintiffs must demonstrate an alternative testing method that (a) has less disparate impact, (b) is equally valid, and (c) was refused by the BPD. As an example, plaintiffs suggest that urinalysis, which the BPD has employed since the early 1990s based on reasonable suspicion, could have been a suitable alternative. The Boston Police Department (BPD) discontinued regular urine testing following a 1991 Supreme Judicial Court ruling deeming random urinalysis an unreasonable search without evidence of a drug problem. Currently, urinalysis is utilized only for officers who consent to drug rehabilitation after a positive hair test. Plaintiffs argue that urinalysis is less expensive and more scientifically accepted than hair testing, which has a longer validation history and is the sole federally approved method for employee drug testing. Commissioner Evans observed an increase in positive tests among minority officers after the shift to hair testing. Both BPD and plaintiffs’ experts indicated no racial bias in urine testing, with Dr. Walsh asserting no evidence of racial bias, and Dr. Kadehjian agreeing that urine testing lacks racial bias. However, his expert report noted that studies showed a higher detection rate of African-Americans compared to Caucasians across testing methods. While there is a material dispute regarding racial bias in urinalysis, it is legally established that hair drug testing by BPD has a racially disparate effect. To counter the BPD’s summary judgment, plaintiffs must demonstrate that urinalysis not only likely has less disparate impact but also is an equally valid method for drug testing, supported by its acceptance in federal drug testing and BPD's use of urinalysis for rehabilitation participants. Undisputed evidence indicates that hair testing and urinalysis are not equivalent alternatives, particularly when assessing their respective benefits and burdens. Urinalysis reliably detects drug use over a 48-hour period, while hair testing covers a 90-day window. The potential for urine to be adulterated, along with the less invasive collection of hair samples, highlights significant differences between the two methods. Plaintiffs have not demonstrated that a reasonable suspicion urinalysis program, as mandated by the Supreme Judicial Court in Guiney, would adequately replace the regular hair testing conducted by the BPD. They have also failed to provide evidence regarding the costs associated with a comparable urinalysis program despite acknowledging that individual urine tests are cheaper than hair tests. The BPD has shown that urinalysis is less sensitive in detecting drugs than hair testing, and plaintiffs have not countered this claim. The plaintiffs have not proven that urinalysis could serve as a valid alternative when considering the overall benefits and burdens. Regarding alternatives to hair testing, plaintiffs propose a system where hair tests are conducted randomly multiple times a year, with subsequent random urinalysis for individuals who test positive. Adverse employment actions would only follow positive urinalysis results. They also suggest integrating results from hair, blood, and urine tests, along with medical records and employment history, into employment decisions. However, the BPD contests the admissibility of Dr. Kidwell’s affidavit, arguing that he was not disclosed as an expert per Rule 26(a)(2) and thus was not deposed during discovery. The plaintiffs indicated that they plan to designate Dr. Kidwell, a Naval Research Laboratory Research Scientist, as an expert if the case proceeds past summary judgment, noting that his affidavit has been part of the record since June 2003, albeit without prior expert designation due to prior advice received. Dr. Kidwell has indicated his availability to testify, and plaintiffs requested his admission as an expert, noting that his affidavit is already part of the summary judgment record reviewed by Judge O’Toole and the First Circuit. Although the BPD opposed the addition of supplemental expert designations, they did not dispute the inclusion of Dr. Kidwell's affidavit in the record. The BPD argues that the plaintiffs’ failure to disclose Dr. Kidwell as an expert under Rule 26 warrants exclusion of his opinion and affidavit. In response, plaintiffs acknowledge the lack of disclosure but contend that preclusion is unwarranted, citing the discretion allowed by the court in determining sanctions and emphasizing factors such as litigation history, the significance of the evidence, justification for late disclosure, and potential prejudice to the opposing party. Plaintiffs assert they reasonably believed Dr. Kidwell would be unavailable to testify and argue that the BPD has waived objections to the affidavit's inclusion by not raising them earlier. The affidavit is critical to the plaintiffs’ case, particularly in explaining external cocaine contamination in African-American hair and proposing alternatives. The BPD claims it did not receive a formal expert report as required by Rule 26(a)(2)(B), but plaintiffs argue that the detailed affidavit provided in June 2003 meets the necessary criteria. Despite the BPD's claim of prejudice from not being able to depose Dr. Kidwell, they have had over a decade to contest his opinions. Allowing the BPD’s objection now, after their long silence on the affidavit's inclusion, would unfairly prejudice the plaintiffs, who would not have an opportunity to address any disclosure issues. Consequently, the BPD's late objection is deemed incongruous given the longstanding acceptance of the affidavit in the case record. Dr. Kidwell's affidavit is deemed admissible for summary judgment despite concerns about his non-disclosure as an expert. However, Dr. Kidwell fails to present statistical or substantial data supporting the effectiveness of his proposed modifications to drug testing. While his suggestions build upon existing hair drug tests and incorporate additional procedures, there is insufficient evidence to suggest they would reduce racial disparities. The EEOC acknowledges that combining procedures can yield more valid outcomes, yet Dr. Kidwell's claims lack comprehensive data to substantiate that his approach would be equally valid or less disparate than current methods. The Baltimore Police Department (BPD) updated its hair testing procedures in January 2007, incorporating additional safeguards such as double confirmation. Plaintiffs argue that these changes indicate a less discriminatory alternative was available prior to their adoption, referencing cases that support considering subsequent practices as evidence of viable alternatives. The only supporting evidence for the effectiveness of the 2007 modifications is a statement from BPD attorney Ms. Horowitz, noting a significant decrease in confirmed positive tests since the changes. However, this does not provide a clear understanding of the trade-offs between accurately identifying drug users and the reduced risk of false positives. Overall, there is a lack of evidence regarding the current procedure's validity in detecting drug use among police officers. The record lacks sufficient evidence to establish the existence of a valid alternative procedure that the Boston Police Department (BPD) refused to implement. The plaintiffs argue that the BPD's failure to adopt an alternative until 2007 indicates a refusal to consider proposed changes. However, they do not provide specific factual allegations regarding alternative proposals known to the BPD. Although Commissioner Evans indicated a willingness to cease hair testing if presented with valid evidence of discrimination, his statement does not confirm an outright refusal to consider alternatives. The plaintiffs reference Dr. Kidwell's suggestions and independent testing by several plaintiffs but fail to detail any concrete alternative procedures the BPD was aware of and rejected. According to EEOC regulations, employers must explore suitable alternatives when assessing testing validity, yet the plaintiffs do not identify any feasible alternatives known to the BPD. The BPD's testing procedures, including Rule 111, underwent extensive collective bargaining with the Boston Police Patrolman’s Association, suggesting the chosen methods were rationally negotiated. The eventual agreement to amend the hair testing procedure in 2007 indicates a willingness to adopt alternatives, albeit after a delay following the identification of racial disparities. Summary judgment is granted in favor of the Boston Police Department (BPD) due to a lack of compelling evidence against their consideration of alternative procedures. The court acknowledges undisputed data from hair tests and highlights that Rule 111 was modified in 2007, with references to the pre-2007 version unless specified otherwise. Plaintiffs challenge the findings of Psychemedics regarding the ingestion of cocaine but do not dispute the presence of cocaine and its byproducts in the hair samples. The BPD objects to the plaintiffs' arguments for not filing a separate statement of facts per Local Rule 56.1. However, the plaintiffs argue that their motion does not constitute a separate cross-motion but serves as grounds to deny summary judgment or support a judgment in their favor. The court notes that the First Circuit's decision suggests evaluating the error rate by comparing false positives to total test results, although the plaintiffs do not counter with an alternative calculation based on the number of positive tests. The court maintains the First Circuit's error rate calculation as the standard for this case, stating that differences in error rates do not influence the analysis. Once a test shows significant correlation with work behavior, the inquiry shifts to whether a superior alternative exists, focusing on a specific testing threshold. An expert affidavit highlights environmental cocaine presence, citing studies of currency, but does not link it directly to transfer risks. Additionally, a report indicates that Psychemedics' wash criterion is more effective than other decontamination methods. Notably, no Asian-American officers have tested positive for cocaine, despite the group's higher melanin content in hair. African American hair typically contains lower melanin levels, but may be more susceptible to damage due to compromised cuticles. Dr. Kidwell's report indicates that plaintiff Jones utilized a hair gel conditioner, yet there is limited evidence of other hair treatments used by the plaintiff. The BPD requests that Dr. Walsh's deposition statement, asserting that urinalysis lacks racial bias, be disregarded because this opinion was not included in his expert report. However, this statement has been part of the summary judgment record since 2011 without objection from the BPD, and was made in response to questions from BPD's counsel, indicating adequate notice. Although the statement lacks supporting evidence and is not particularly strong, it aligns with Dr. Kadehjian's testimony, the BPD's expert. Consequently, Dr. Walsh’s statement will not be excluded. Dr. Rollins, another expert for the plaintiffs, argues that modern urine testing can effectively detect sample adulteration, but the evidence supporting this claim is not substantial. The BPD primarily objects to Dr. Kidwell's affidavit regarding alternative methods, yet this objection does not broadly encompass his explanations about African American hair. Should the case proceed to trial, the BPD would be allowed to depose Dr. Kidwell and request additional discovery. Additionally, Psychemedics employed a safety-net test with a very low threshold of .2 ngOO mg during certain years, but evidence suggests the union was unaware of or did not consent to this testing level.