Jones v. City of Bos.
| Decision Date | 06 August 2015 |
| Docket Number | CIVIL ACTION NO. 05–11832–DPW |
| Parties | Ronnie Jones, et al., Plaintiffs, v. City of Boston, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Elizabeth M. Sartori, Amanda V. McGee, Matthew T. Bohenek, Morgan, Lewis & Bockius LLP, Deana K. El–Mallawany, U.S. Attorney'S Office, Jenny K. Cooper, Ropes & Gray, John F. Adkins, Laura Maslow–Armand, Lawyers' Committee for Civil Rights and Economic Justice, Boston, MA, for Plaintiffs.
Helen G. Litsas, City of Boston Law Department, Michael K. Clarkson, Ogletree Deakins Nash Smoak & Stewart, Amy E. Ambarik, Nicole Murati Ferrer, Boston Police Department, Boston, MA, for Defendants.
This racial discrimination case was brought by ten black plaintiffs against the Boston Police Department, the City of Boston, and the Commissioner of the Boston Police Department (collectively "BPD"). Plaintiffs challenge the hair drug test administered by the BPD to officers and cadets from 1999 through 2006.
Beginning in 1999, the BPD required officers and cadets to provide yearly hair samples for drug testing. A small percentage of officers and cadets tested positive for cocaine during this period. Even though approximately two-thirds of the officers and cadets were white, more black officers and cadets than white ones tested positive for cocaine.1 During the eight years at issue, black officers and cadets tested positive for cocaine approximately 1.3% of the time, while white officers and cadets tested positive just under 0.3% of the time. Jones v. City of Boston, 752 F.3d 38, 41 (1st Cir.2014).
The officer's union (the Boston Police Patrolmen's Association) and the BPD included a provision in their collective bargaining agreement implementing these drug tests through Rule 111 of the Boston Police Department Rules and Procedures.2 Rule 111 states that "hair testing procedures are effective pursuant to the collective bargaining agreement." The hair analysis is conducted by a private company, Psychemedics Corporation. When a hair sample test result is positive for cocaine, the BPD consults a physician to see whether the officer had received medication that could result in a positive result. A person who tests positive can also request a "safety-net test" to confirm the positive result, but the levels for the safety-net test were not specified in bargaining with the union. The safety-net test originally used a cutoff of 2 ng/10 mg, but that was reduced to .2 ng/10 mg in 2001. An employee who tested positive for the first time could agree to an unpaid suspension of forty-five days and to drug rehabilitation treatment, otherwise the employee would be terminated.
Seven of the plaintiffs are former officers who were fired, an eighth was a former cadet who was fired, a ninth tested positive but agreed to undergo drug rehabilitation and a forty-five-day unpaid suspension as an alternative to being fired, and the tenth was an applicant to the BPD whose contingent job offer was revoked. Jones, 752 F.3d at 41. Each of the ten plaintiffs tested positive for cocaine using the hair test and suffered adverse consequences. Each of the plaintiffs denied cocaine use, arguing instead that the hair test generated false positives indicating ingestion of cocaine,3 a circumstance that is particularly likely to arise with individuals having African–American hair.
The plaintiffs brought this action in state court in July 2005, and the BPD removed the case to this court. In plaintiffs' First Amended Complaint, they alleged that the hair drug testing had a disparate impact on black officers in violation of Title VII of the Civil Rights Act of 1964 and that the testing and terminations violated the Americans with Disabilities Act (ADA), the Equal Protection Clause through 42 U.S.C. § 1983, and Massachusetts law. Judge O'Toole granted summary judgment to the BPD on all claims, in a decision that concluded that the plaintiffs had not established a prima facie case of racially disparate impact under Count I, the Title VII claim. Jones v. City of Boston, No. Civ. 05–11832–GAO, 2012 WL 4530594, *3 (D.Mass. Sept. 28, 2012)aff'd in part, rev'd in part and , 752 F.3d 38 (1st Cir.2014). Judge O'Toole did not reach two remaining aspects of the disparate impact claim, business necessity and the existence a less discriminatory alternative. Id. The plaintiffs appealed.
The First Circuit reversed in part and affirmed in part. Jones, 752 F.3d 38. The First Circuit reversed the grant of summary judgment to the BPD on the question whether the plaintiffs had made out a prima facie case, and granted summary judgment on this issue instead to the plaintiffs. In doing so, the court rejected the argument that practical significance, which focuses on determining whether a statistically significant difference is sufficiently large, plays any role in determining a prima facie case. The court held that "a plaintiff's failure to demonstrate practical significance cannot preclude that plaintiff from relying on competent evidence of statistical significance to establish a prima facie case of disparate impact." Jones, 752 F.3d at 53. The court affirmed the dismissal of all other claims. The First Circuit, however, declined to determine certain remaining questions: whether the practice is job related and consistent with business necessity and whether the plaintiffs have offered an adequate alternative with a less disparate effect. The case was remanded to the district court to resolve these questions in the first instance. On remand, the matter was reassigned to me.
Simultaneous with the development of this case, five of the ten plaintiffs in this matter were among a group of officers who appealed their terminations to the Massachusetts Civil Service Commission ("the Commission") under Mass. Gen. Laws c. 31 §§ 41 –43. After extensive hearings, which will be discussed in greater detail below, the Commission concluded in its February 28, 2013 decision that the hair drug test could not be used on its own to discharge a tenured officer. The Commission ultimately held that some of the appellants were properly discharged and that others, including the five appellants who are also plaintiffs in this case, must be reinstated. The BPD appealed the decision to Suffolk Superior Court, where Judge Fabricant affirmed the Commission's decision. Boston Police Dept. v. Civil Service Comm'n, Nos. 13–1250–A, 13–1256–F (Suffolk Sup.Ct. October 6, 2014) (the "Superior Court Decision"). The BPD has appealed the Superior Court decision to the Massachusetts Appeals Court, where the appeal is pending. Boston Police Dept. v. Civil Service Comm'n, appeal docketed, No.2015–P–0330 (Mass.App.Ct. Mar. 11, 2015).
The First Circuit held that the plaintiffs have made a prima facie showing of disparate impact in this case; thus the burden now shifts to the BPD to demonstrate that "the challenged practice is job related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e2(k)(1)(A)(i). If an employer makes that showing, a plaintiff has the burden to prove an "alternative employment practice," 42 U.S.C. § 2000e–2(k)(1)(A)(ii), that would be a "test or selection device, without a similarly undesirable racial effect" that would still serve the employer's legitimate interest. Jones, 752 F.3d at 54 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) ). The plaintiff prevails if the employer has refused to adopt such an alternative employment practice. 42 U.S.C. § 2000e–2(k)(1)(A)(ii).
Here, the BPD has again moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c) ; Perry v. Roy, 782 F.3d 73, 78 (1st Cir.2015). A genuine issue of material fact must be built on materials of evidentiary quality—my role is to assess whether there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. All facts in the record and all reasonable inferences must be drawn in favor of the nonmovant. Id. at 77. The plaintiffs insist that they are not independently moving for summary judgment themselves, although they note issues—such as their claim of issue preclusion — that may tempt me to use my ability to grant summary judgment in favor of a nonmovant, Fed.R.Civ.P. 56(f).
The threshold question of the job-relatedness inquiry is whether the BPD can "show that its program aims to measure a characteristic that constitutes an 'important element[ ] of work behavior.' " Jones, 752 F.3d at 54 (quoting Albemarle, 422 U.S. at 431, 95 S.Ct. 2362 ). The plaintiffs do not object to the concept of mandatory drug testing of law enforcement officers and applicants for employment as law enforcement, and they do not dispute the value of a drug-free workplace for law enforcement. Plaintiffs do not dispute that drug testing aims to measure a characteristic that is an important element of work behavior and job performance. The job-relatedness requirement therefore is met.
The next step in this inquiry is whether the BPD has shown that the results of the drug testing are business related, meaning "predictive of or significantly correlated with" officers' drug use. Albemarle, 422 U.S. at 431, 95 S.Ct. 2362.
The plaintiffs first argue that due to the prior decision of the Massachusetts Civil Service Commission ("the Commission") in In re Boston Police Department Drug Testing Appeals, Nos. D01–1409 et al. (herein "Commission Decision") subsequently affirmed by the Suffolk Superior Court, Boston Police Dept. v. Civil Service Comm'n, Nos. 13–1250–A, 13–1256–F, the BPD is precluded from arguing that the hair drug testing...
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