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Jones v. City Of Boston

United States Court of Appeals, First Circuit

December 28, 2016

RONNIE JONES; RICHARD BECKERS; WALTER R. WASHINGTON; WILLIAM E. BRIDGEFORTH; SHAWN N. HARRIS; EUGENE WADE; GEORGE C. DOWNING, JR.; CLARARISE BRISTOW; MASSACHUSETTS ASSOCIATION OF MINORITY LAW ENFORCEMENT OFFICERS; RACHELLE COUCH; KERI HOGAN, Plaintiffs, Appellants,
v.
CITY OF BOSTON; BOSTON POLICE DEPARTMENT; WILLIAM B. EVANS, Commissioner of the Boston Police Department, Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Douglas P. Woodlock, U.S. District Judge]

          Lisa J. Pirozzolo, with whom Jared B. Cohen, Jeffrey S. Olshan, Wilmer Cutler Pickering Hale and Dorr LLP, Iván Espinoza-Madrigal, Oren M. Sellstrom, Laura Maslow-Armand, and Lawyers' Committee for Civil Rights and Economic Justice were on brief, for appellants.

          Stephen S. Churchill and Fair Work, P.C. on brief for Fair Employment Project, National Workrights Institute, Jewish Alliance for Law and Social Justice, Massachusetts Law Reform Institute, Boston Society of Vulcans of Massachusetts, Union of Minority Neighborhoods, Massachusetts Employment Lawyers Association, Brazilian Worker Center, Massachusetts Black Lawyers Association, Fair Housing Center of Greater Boston, and Community Change, Inc., amici curiae.

          Michael L. Foreman and Pennsylvania State University, Dickinson School of Law, Civil Rights Appellate Clinic on brief for National Employment Lawyers Association, Equal Justice Society, Justice at Work, and American Civil Liberties Union of Massachusetts, amici curiae.

          Helen G. Litsas, with whom Law Office of Helen G. Litsas was on brief, for appellees.

          Before Howard, Chief Judge, Selya and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge.

Making their second appearance before this court are eight police officers, a police cadet, and a provisionally hired 911 operator (collectively, the "Officers"), who claim that they suffered adverse employment actions by the Boston Police Department ("Department") as a result of a racially discriminatory hair drug test. Eschewing any claim that the Department discriminated against them intentionally, the Officers advance a so-called disparate impact claim under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(k). Adjudicating the question of liability under such a claim begets a three-prong, sequential inquiry. See Lopez v. City of Lawrence, 823 F.3d 102, 110-11 (1st Cir. 2016). In our prior opinion, we held that the Officers--all of whom identify as black--had established under the first prong of that inquiry that the hair drug test caused a cognizable disparate impact. See Jones v. City of Boston ("Jones I"), 752 F.3d 38, 60 (1st Cir. 2014). We remanded the case to the district court to consider the next two prongs by determining, either on summary judgment or after trial, as appropriate: (1) whether the Department's drug testing program was job related and consistent with business necessity; and, if so, (2) whether the Department refused to adopt an available alternative that would have met the Department's legitimate needs while having less of a disparate impact.

          On remand, the district court again entered summary judgment for the Department, concluding that the evidence could not support a jury verdict for the Officers on either of the remaining prongs of the disparate impact liability inquiry. We now vacate that judgment, albeit only in part. Although the drug test was indisputably job related and its use was consistent with business necessity, a reasonable fact finder could nevertheless conclude that the Department refused to adopt an available alternative to the challenged hair testing program that would have met the Department's legitimate needs while having less of a disparate impact. Our reasoning follows.

         I. Background

         Our prior opinion details much of the relevant factual background. See Jones I, 752 F.3d at 42-46. In a nutshell, from 1999 to 2006, the Department administered a hair drug test to thousands of officers, cadets, and job applicants. The testing procedure called for the gathering of a hair sample, which was then "washed" and analyzed for the presence of cocaine, marijuana, opiates, PCP, and amphetamines. Upon detecting cocaine in a hair sample, a licensed physician would determine whether legally administered medication could have caused the positive result. The individual who tested positive was also permitted to submit a second sample for a so-called "safety-net" test.

          The results were negative for over 99% of the white individuals tested and over 99% of the black individuals tested. The Officers now before us, however, were among the fewer than two percent of black individuals who tested positive for cocaine. As a result, nine lost a job or job offer, and one received an unpaid suspension subject to participation in a drug rehabilitation and testing program.

         In the first go-around, the district court relied on a rule of thumb promulgated by the U.S. Equal Employment Opportunity Commission ("EEOC") to declare that there was no actionable disparate impact, because the one-percent difference in pass rates between white and black officers was so miniscule as to be of no practical significance. We, in turn, found the EEOC rule of thumb not controlling. See id. at 52. Instead, because the difference in exam results by race was indisputably statistically significant, we concluded that the Officers prevailed as a matter of law on the first prong of the three-prong disparate impact inquiry. Id. at 60. On remand, the case was randomly assigned to a new district court judge in accord with the district's customary practice.

         In short order, the parties marshalled their evidence, mostly in the form of competing expert opinions concerning the reliability of the test, together with affidavits from the Officers denying drug use. In a lengthy and attentive opinion, the district court found that no reasonable jury could rule in favor of the Officers on either of the two remaining prongs. Specifically, the court found that the Department "demonstrated . . . the business necessity and job relatedness of the hair drug test, " Jones v. City of Boston, 118 F.Supp.3d 425, 440 (D. Mass. 2015), and that the Officers failed to offer "any compelling evidence of the [Department's] refusal to consider and adopt an alternative equally valid procedure, " id. at 446. The Officers appeal both findings.

         II. ...


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