Jones v. City of Boston , 752 F.3d 38 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2280
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; EDWARD DAVIS,
Commissioner of the Boston Police Department,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Torruella, Howard, and Kayatta,
Circuit Judges.
John F. Adkins, with whom Laura Maslow-Armand, Lawyers'
Committee for Civil Rights and Economic Justice, Doreen M. Rachal,
and Bingham McCutchen LLP were on brief, for appellants.
Helen G. Litsas, with whom Nicole I. Taub, Staff
Attorney, Office of the Legal Advisor, was on brief, for appellees.
Joel Z. Eigerman on brief for Jewish Alliance for Law &
Social Action, Boston Society of Vulcans, Community Change, Inc.,
Massachusetts Law Reform Institute, Union of Minority
Neighborhoods, Justice at Work, Inc., The National Workrights
Institute, Blacks in Law Enforcement of America, and NAACP Boston,
amici curiae in support of appellants.
Stephen Churchill and Lichten & Liss-Riordan, P.C., on
brief for Massachusetts Employment Lawyers Association, Fair
Employment Project, American Civil Liberties Union of
Massachusetts, Union of Minority Neighborhoods, Charles Hamilton
Houston Institute for Race and Justice at Harvard Law School, Civil
Rights Clinic at Howard University School of Law, Fair Housing
Center of Greater Boston, Massachusetts Law Reform Institute,
Justice at Work, Inc., The National Workrights Institute, Blacks in
Law Enforcement of America, and NAACP Boston, amici curiae in
support of appellants.
Richard Pianka, ATA Litigation Center, and Prasad Sharma
on brief for American Trucking Associations, Inc., amicus curiae in
support of appellees.
Mark A. de Bernardo, Joseph E. Schuler, and Jackson Lewis
LLP on brief for The Council for Employment Law Equity, amicus
curiae in support of appellees.
Mark A. de Bernardo, Matthew F. Nieman, and Jackson Lewis
LLP on brief for The Institute for a Drug-Free Workplace, amicus
curiae in support of appellees.
Peter A. Biagetti and Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., on brief for Psychemedics Corporation, amicus
curiae in support of appellees.
May 7, 2014
KAYATTA, Circuit Judge. In this racial discrimination
case, ten black plaintiffs challenge the Boston Police Department's
drug testing program. Seven of the plaintiffs are former officers
fired by the department after testing positive for cocaine; the
eighth is a former cadet in the same situation; the ninth continues
to work as an officer after testing positive and undergoing
rehabilitation as an alternative to termination; and the tenth is
a former applicant to the department whose contingent job offer was
revoked after a positive test. The plaintiffs' principal claim is
that the department's program, which used hair samples to test for
illegal drug use, caused a disparate impact on the basis of race in
violation of Title VII of the Civil Rights Act of 1964. During the
eight years for which the plaintiffs present data, 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. The plaintiffs deny that they used cocaine,
arguing that the hair test employed by the department generated
false-positive results in processing the type of hair common to
many black individuals. The plaintiffs also press claims under the
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United States Constitution, via 42 U.S.C. § 1983, and under the
Americans with Disabilities Act (ADA).1
The district court granted summary judgment to the
department on all claims. We vacate the grant of summary judgment
with respect to the plaintiffs' Title VII claim, and we also
reverse the district court's denial of their motion for partial
summary judgment on that claim, finding no genuine issue of
material fact that could preclude them from making a threshold,
prima facie showing of disparate impact. We otherwise affirm the
district court's decision.
I. Background
The facts described in this opinion are not genuinely
disputed, except where otherwise noted.
A. The Department's Drug Testing Program
Since 1999, officers and cadets in the Boston Police
Department have been subject to annual drug tests using samples of
1
In the district court, the plaintiffs originally pursued a
number of other claims. They have not defended on appeal their
claims under the Equal Protection Clause of the U.S. Constitution
or 42 U.S.C. § 1981, so the grant of summary judgment to the
department on those claims stands. See, e.g., Dialysis Access
Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 374 n.7 (1st Cir.
2011). The plaintiffs' brief on appeal also does not separately
discuss their claims under Mass. Gen. Laws ch. 93, § 103, and ch.
151B, § 4, and the Massachusetts Declaration of Rights, except to
say that they are governed by the same analysis as their ADA claim.
Because we affirm the grant of summary judgment to the department
on that claim, we also affirm it on the state law claims.
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their hair.2 Under a provision of a collective bargaining
agreement between the department and the police officers' union
known as Rule 111, the department selected a private company,
Psychmedics Corporation, to analyze employees' hair for the
presence of chemicals indicating exposure to five substances:
cocaine, marijuana, opiates, PCP, and amphetamines.
When Psychmedics reported that an individual's test
results indicated exposure to cocaine, a licensed physician
selected by the department checked to see whether the individual
had been administered "cocaine hydrochloride . . . during a
medical procedure." As an additional exculpatory safeguard, the
individual could elect to have a "safety-net" test of a different
hair sample. During much of the period in which the plaintiffs
tested positive, the safety-net tests were significantly more
sensitive than the initial tests in detecting the presence of
cocaine and its chemical by-products.
If an employee tested positive, and was not exonerated by
either the medical review or the safety-net test, the department
terminated the employee unless he or she agreed to seek
rehabilitation for drug abuse and to accept an unpaid suspension of
45 work days while undergoing treatment. Before a termination
became final, however, Massachusetts law required the department to
2
The drug testing regime underwent changes in 2007, and the
claims at issue here relate only to the period between 1999 and
2006, inclusive.
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provide a written notice of reasons, followed by an evidentiary
hearing at which an employee could argue that there was no just
cause for termination. Mass. Gen. Laws Ann. ch. 31, § 41. A
police administrator customarily presided over the pre-termination
hearings. If the hearing officer found just cause, the department
fired the employee, who could then mount a post-termination appeal
to the Massachusetts Civil Service Commission.3 Mass. Gen. Laws
Ann. ch. 31, § 42.
The department also used the hair test to screen job
applicants. After an applicant received a conditional offer of
employment, the applicant was required to pass the hair test before
the offer would become final.
B. Drug Test Results for Officers and Cadets
A very small percentage of officers and cadets, either
white or black, tested positive for cocaine during the period
covered by this lawsuit. Of those who did test positive, however,
there were more black employees than white employees even though
over two-thirds of the officers and cadets tested were white. As
an example, in 2003, an average year during the period: 6 of 529
black officers and cadets tested positive, or 1.1% of that group,
3
In fact, six of the plaintiffs jointly pursued a challenge
to their terminations at the Massachusetts Civil Service
Commission. In February 2013, that challenge resulted in an order
of reinstatement, with partial backpay, for five of the plaintiffs,
each of whom continues to seek full compensation and additional
damages in this case.
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while 3 of 1260 white officers and cadets tested positive, or 0.2%
of that group.4
The small absolute number of positive tests relative to
the total number of tests presents opportunities for markedly
different characterizations of any correlation between test results
and the races of the individuals tested. One could say that black
officers and cadets were more likely than their white colleagues to
test positive by just one percentage point. Or one could say that
black officers and cadets were five times more likely to test
positive. Perhaps trying to prove correct Mark Twain's quip about
statistics, the parties wage battle in their briefs with these
unhelpful types of competing characterizations of the numbers.
Statisticians, by contrast, customarily approach data
such as this more precisely. They ask whether the outcomes of an
employment practice are correlated with a specified characteristic,
such as race, and, if so, whether the correlation can reasonably be
attributed to random chance. The customary yardstick for making
this latter determination is called "statistical significance."
Statisticians employ a number of different methods to
assess statistical significance in a variety of different contexts.
Federal Judicial Center, Reference Manual on Scientific Evidence
251 (3d ed. 2011) (hereinafter "FJC Reference Manual"). In the
approach most relevant here, statisticians may compare outcomes for
4
We describe the genesis of these figures below.
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two different groups (e.g., black employees and white employees)
presuming that members of the two groups have the same likelihood
of receiving a given outcome (e.g., a promotion). See Paul Meier,
Jerome Sacks, and Sandy L. Zabell, What Happened in Hazelwood:
Statistics, Employment Discrimination, and the 80% Rule, 1984 Am.
Bar Found. Res. J. 139, 147 (1984). Statisticians are well aware
that this assumption of equal opportunity, even if true, does not
mean that the two groups will experience exactly equal outcomes:
random variation will often create differences. To assess the
likelihood that an observed difference in outcomes resulted from
mere chance, statisticians calculate the probability of observing
a difference equal to or greater than that which actually occurred,
assuming equal opportunity.5 They call this probability the
"p-value." FJC Reference Manual at 250. Statisticians usually
apply the label "statistically significant" to the observed
differential outcomes if the p-value is less than five percent, see
Fudge v. City of Providence Fire Dep't, 766 F.2d 650, 658 n.8 (1st
Cir. 1985), although they sometimes use a different cut-off, such
as one percent, FJC Reference Manual at 251-52.
Essentially, a finding of statistical significance means
that the data casts serious doubt on the assumption that the
5
Because the parties have not raised the issue, we do not
discuss here the distinction between "one-tailed" and "two-tailed"
tests for statistical significance. See Palmer v. Shultz, 815 F.2d
84, 92-96 (D.C. Cir. 1987) (discussing the issue at length).
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disparity was caused by chance. When statisticians find a
disparity between racial groups to be statistically significant,
they are willing to reject the hypothesis that members of the
groups truly had an equal chance of receiving the outcome at issue.
Id.Statistical significance and p-value are often connected
with a third concept, "standard deviation."6 In disparate impact
cases, standard deviation serves as another way of measuring the
amount by which the observed disparity in outcomes differs from the
average expected result given equal opportunity, e.g., equal rates
of promotion for black and white employees. A difference of 1.96
standard deviations generally corresponds to a p-value of five
percent, while a difference of three standard deviations generally
corresponds to a p-value of approximately 0.5%. FJC Reference
Manual at 251 n.101 As the Supreme Court observed in a case
involving allegations of discriminatory jury selection, "[a]s a
general rule . . . , if the difference between the expected value
and the observed number is greater than two or three standard
deviations, then the hypothesis that the jury drawing was random
6
We, like other courts, use the term "standard deviation" to
describe a measure that statisticians often label "standard error."
FJC Reference Manual at 251 n.101.
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would be suspect to a social scientist." Castaneda v. Partida, 430
U.S. 482, 496 n.17 (1977).7
In this case, the parties work with a large sample of
thousands of test results from which calculations of deviations
from an expected random distribution can be made with a high degree
of statistical power. The parties also appear to have no material
dispute regarding the raw numbers underlying the analysis: the
plaintiffs' brief relies on a table created by the plaintiffs
labeled "Comparison of African-American and White Positive Hair
Test Results Under Four-Fifths Rule," which adopts counts offered
by the department's experts, and the department's brief makes no
effort to disavow those numbers. The plaintiffs further cite the
department's calculations of the standard deviations associated
with those counts, and the plaintiffs do not appear to challenge
those calculations. We therefore deem these numbers and
calculations to be undisputed, except to the limited extent that
the department raises methodological objections to the analysis of
the undisputed data, which we address below.
The undisputed data and calculations are as follows:
7
The formulation of "greater than two or three" as expressed
in Castaneda is an example of the uneasy fit between the language
of law and the language of mathematics. Every number greater than
two or three is greater than two. What might be said more
precisely is that in many situations two standard deviations will
generate an inference of nonrandomness for a social scientist,
while in other situations a higher threshold may be employed,
depending on the researcher's assessment of the confidence needed
before accepting the result.
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Year # Tested/# Positive Standard
Deviation
Black White
1999 521/15 1491/10 3.43
2000 537/4 1467/3 1.35
2001 530/3 1404/3 0.81
2002 532/15 1375/4 4.41
2003 529/6 1260/3 2.01
2004 522/4 1260/4 1.92
2005 529/3 1289/1 1.43
2006 522/5 1289/2 1.95
1999 to 2006 4222/55 10,835/30 7.148
This evidence does not establish that the differences in
outcomes were large. It shows, instead, the extent to which we can
be confident that the differences in outcomes, whether large or
small, were not random. To the extent the facts make it
appropriate to consider the eight-year aggregate data as a single
sample, we can be almost certain that the difference in outcomes
associated with race over that period cannot be attributed to
chance alone. Nor can randomness be viewed as other than a very
8
The standard deviation of 7.14 for all years combined is
far greater than the average of the standard deviations in the
individual years for the same reason that the odds of a coin
landing on tails in thirty out of forty flips is far less than the
odds of getting three tails in four flips. We discuss below the
department's perfunctory objection that these drug test outcomes,
unlike flips of a fair coin, are not independent events.
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unlikely explanation for results in at least three of the years
viewed in isolation.
C. Alleged False Positives and Racial Bias of Hair Testing
In addition to presenting a statistical demonstration
that the racial differential in outcomes very likely did not result
from chance, the plaintiffs also sought to prove that differences
in the chemical and physical characteristics of hair, also
associated with race, may have accounted for the observed
differential in outcomes. The parties presented sharply
conflicting evidence on this claim. The plaintiffs' experts argue
that hair tests are relatively unreliable and note that the federal
government has refused to authorize hair testing in drug screening
of federal employees and employees of private industries for which
the government regulates drug testing. The plaintiffs' experts
also opine that black individuals tend to have higher levels of
melanin in their hair, and that melanin causes cocaine and
associated chemicals called cocaine metabolites to bind to hair at
a higher rate. They assert that cocaine in the form of an
"aerosolized powder," which forms after someone has snorted or
smoked it, will "deposit on any nearby surface including the hair
of non-users." These deposits, the plaintiffs say, can become
incorporated into the hair in such a way that current hair testing
methods cannot distinguish from the effects of actual drug use.
Such incorporation might be particularly likely where a person has
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undergone cosmetic hair treatments more common in the black
community. The plaintiffs do not claim on appeal, though, that
each of them was exposed to cocaine prior to their tests.
The department's experts counter that hair testing has
been validated by numerous scientific studies. They also dispute
that there is any scientific evidence of racial bias in hair
testing. In particular, they point to studies showing that the
relative rates of positive drug tests for black and white
individuals remain materially constant across different methods of
testing, specifically hair testing, urine testing, and blood
testing, and note that the plaintiffs' experts do not claim that
results from urine and blood testing are racially skewed. The
department also questions any correlation between positive test
results and melanin levels. Asserting that many Caucasians and
most Asian-Americans have melanin levels as high or higher than
those of the plaintiffs, the department points out that no Asian-
American in the department has ever tested positive, nor has any
officer in the department's Drug Control Unit or Evidence
Management Unit, where officers would be most likely to be exposed
to cocaine on the job.
D. Procedural History
The plaintiffs initiated this suit in state court in July
2005, and the department removed it to federal court soon after.
Several years of discovery followed, culminating in summary
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judgment motions from both sides. The district court granted
summary judgment to the department on all claims on September 28,
2012. We have jurisdiction over this timely appeal of the district
court's final order under 28 U.S.C. § 1291.
II. Standard of Review
We review de novo the district court's grant of summary
judgment. Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146
(1st Cir. 2013). Under Federal Rule of Civil Procedure 56(a),
"[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
III. Analysis
A. Disparate Impact Racial Discrimination
Title VII prohibits employers from utilizing "employment
practices that cause[] a disparate impact on the basis of race"
unless those practices are justified by business necessity. 42
U.S.C. § 2000e-2(k). Notably, a disparate impact claim can succeed
even where the employer did not intend to discriminate. See, e.g.,
Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1021
(1st Cir. 1974). This distinguishes the disparate impact cause of
action from the more traditional disparate treatment approach to
proving discrimination. To make a prima facie showing of disparate
impact, a plaintiff starts by "isolating and identifying" the
employment practice being challenged. Watson v. Fort Worth Bank &
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Trust, 487 U.S. 977, 994 (1988). A plaintiff must then show that
the identified practice "causes a disparate impact on the basis of
race." 42 U.S.C. § 2000e-2(k)(1)(A)(i). The Supreme Court has
most recently described a prima facie showing of disparate impact
as "essentially a threshold showing of a significant statistical
disparity . . . and nothing more." Ricci v. DeStefano, 557 U.S.
557, 587 (2009). See also Fudge v. City of Providence Fire Dep't,
766 F.2d 650, 658 n.8 (1st Cir. 1985) (holding that a prima facie
case of disparate impact can be established where "statistical
tests sufficiently diminish chance as a likely explanation").
1. There is no genuine dispute that there is a
statistically significant correlation between
outcomes of the department's drug testing program
and race.
In the district court, and in their opening brief on
appeal, the plaintiffs made clear that the employment practice they
challenge is "the Hair Test," defined by the common elements of the
drug tests used by the department between 1999 and 2006, inclusive.
The department does not dispute that this practice constitutes a
"particular employment practice" as required by the statute. 42
U.S.C. § 2000e-2(k)(1)(A)(i).
Having identified the challenged employment practice, the
plaintiffs presented evidence that the results of this practice had
a statistically significant correlation with race. As their
threshold for statistical significance, the plaintiffs chose a p-
value of five percent, or 1.96 standard deviations, the threshold
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most commonly used by social scientists. Most federal courts have
also settled on this threshold in analyzing statistical showings of
disparate impact.9 Because the department does not challenge this
convention, we accept it here without ruling on its general
applicability.
Using the five percent threshold, the plaintiffs showed
that, in at least three of the eight years during the relevant
period, the differential between positive results for black and
white employees was statistically significant. Moreover, when the
data from the eight years is aggregated, the distribution in test
results for black employees deviated by more than seven standard
deviations from the expected norm. The department does not
meaningfully challenge the raw math behind these calculations of
9
See Tabor v. Hilti, Inc., 703 F.3d 1206, 1223 (10th Cir.
2013) (describing a statistical significance threshold of "two or
three standard deviations"); Chin v. Port Auth. of N.Y. & N.J., 685
F.3d 135, 145, 153-54 (2d Cir. 2012) ("[S]tatistical significance
at the five-percent level is generally sufficient . . . ."); Stagi
v. Nat'l R.R. Passenger Corp., 391 F. App'x 133, 140, 144-45 (3d
Cir. 2010) (holding that the threshold is generally "a probability
level at or below 0.05, or at 2 to 3 standard deviations or
greater"); Paige v. California, 233 F. App'x 646, 648 (9th Cir.
2007) (accepting 1.96 standard deviations as the threshold for
statistical significance); Adams v. Ameritech Servs., Inc., 231
F.3d 414, 424 (7th Cir. 2000) ("Two standard deviations is normally
enough to show that it is extremely unlikely (that is, there is
less than a 5% probability) that the disparity is due to chance,
giving rise to a reasonable inference that the hiring was not race-
neutral . . . ."); Anderson v. Zubieta, 180 F.3d 329, 340 (D.C.
Cir. 1999) (indicating that "disparities . . . exceed[ing] 1.96
standard deviations under a two-tailed test of statistical
significance" are sufficient to establish a prima facie of
disparate impact).
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statistical significance. Instead, the department raises three
methodological objections.
First, the department's lawyers claim that the employees
who opted to avoid termination in the wake of a positive test
result by undergoing drug rehabilitation or resigning were
"correctly identified as using illicit drugs" and therefore must be
excluded from the plaintiffs' statistical analysis. The
department's own experts provide no support for this argument
penned by counsel, nor do counsel venture to explain how altering
the raw numbers in this way would produce any material difference
in the plaintiffs' ultimate statistical results. This argument
also lacks any logical foundation that we can identify without the
benefit of expert testimony. The plaintiffs identify as the
challenged employment practice, and therefore subject to
statistical analysis, the test used to identify which officers have
used drugs, i.e., the test used to identify which officers will
have to choose between termination and a suspension/rehabilitation
regimen. The plaintiffs must show, then, that this selection
process produces identifications that are not randomly distributed
by race. The accuracy of that identification process, as
determined ex post, is a different matter, perhaps relevant to the
business necessity defense as discussed below, but not relevant to
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the statistical showing of a disparate impact in the
identifications themselves.10
Second, the department argues that plaintiff Clararise
Bristow cannot rely on the statistical analysis of the outcomes of
hair testing for department employees because she was not an
employee. Rather, she received a conditional offer of employment,
but that offer was retracted when she failed a drug test. While
this difference is material to our analysis of Bristow's due
process claim, her status as a tested applicant rather than a
tested officer, as described by the department, is immaterial to
her disparate impact claim. She took the same hair test as that
given to the incumbent officers. The only difference cited by the
department--that she was not eligible for rehab when she failed the
test--is not a difference that would plausibly affect application
of the hair test to her. Given that the department claims no other
respect in which Bristow is not similarly situated to those other
people who were tested, there is no basis for precluding her from
relying on the plaintiffs' statistical analysis regarding the
impact of the test she took.
Third, the department objects to the plaintiffs'
aggregation of data from the first eight years of the drug testing
10
For the same reason, we reject the department's argument
that its evidence of the reliability of hair testing, if accepted
by the factfinder, would preclude the plaintiffs from even making
a prima facie showing of a statistically significant disparity.
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program. Some form of aggregation (albeit certainly not covering
all eight years) may be necessary to sustain the claims of those
plaintiffs who tested positive in a year in which the disparity was
not statistically significant when looking at the data from that
year alone. The department says that any aggregation was improper
because many of the same individuals were tested in different
years, cutting against any assumption that the test results for the
different years were independent events. After not raising this
argument in its memorandum supporting its motion for summary
judgment in the district court, the department now relies solely on
a vague, one-sentence footnote from an expert report, which offers
no analysis of the actual magnitude and effect of the claimed lack
of independence in year-to-year results. Whatever the merit of
this argument,11 the department did not sufficiently develop it in
the district court to rely on it now.
Apart from floating on appeal the three foregoing
arguments that we find inadequately supported and preserved, the
department raises no other basis for questioning the existence of
a statistically significant correlation between race and drug test
results for department employees. While an amicus brief questions
11
A demonstration that the statistical analysis was skewed
by a lack of independence in the year-to-year samples would be
complex, implicating such factors as layoff and hiring practices
and the probability that a person who tested negative in one year
will test negative in a later year, as compared to the probability
of a negative result for someone first tested in the later year.
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whether the statistical analysis considered and addressed possible
confounding variables (such as, for example, age) the department's
experts make no attempt to explain away the differentials on such
grounds, nor does the department argue that such an explanation
could negate a prima facie showing of disparate impact. Rather,
the department's rebuttal to the plaintiffs' prima facie showing
rests on the argument adopted by the district court: even a showing
of a statistically significant disparity is insufficient if the
size of the impact is not sufficiently large, or "practically
significant," as measured by the so-called four-fifths rule. We
discuss that argument in the next section of this opinion.
2. Title VII does not require plaintiffs to prove that
the observed differential is "practically
significant" in order to establish a prima facie
case of disparate impact.
We turn now to the department's argument, adopted by the
district court, that even a statistically significant racial skew
in outcomes does not constitute a disparate impact unless the
racial differential is also sufficiently large, or "practically
significant." The department correctly points out that, with a
large enough set of data, even very small differences can be
statistically significant. See FJC Reference Manual at 252. For
example, if you were to flip a coin a million times, and the coin
were to land on tails exactly 50.1% of the time, the deviation from
the expected result of 50% tails and 50% heads would be
statistically significant, even though it amounts to just one flip
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per thousand. Recognizing this possibility, statisticians
acknowledge that not all statistically significant results are
practically significant, meaning "practically meaningful or
important." E.g., Xitao Fan, Statistical Significance and Effect
Size in Education Research: Two Sides of a Coin, 94 J. Educ. Res.
275, 277 (2001). According to the Federal Judicial Center's
reference manual on scientific evidence, "[w]hen practical
significance is lacking--when the size of a disparity is
negligible--there is no reason to worry about statistical
significance." FJC Reference Manual at 252.
The department therefore argues that courts in disparate
impact cases should ask not simply whether a disparity is
nonrandom, but also whether it is sufficiently large. Under this
view, liability may not be justified, for example, where a program
grants promotions to 9.1% of black employees and 9.9% of white
employees, even if the imbalance is statistically significant. Cf.
Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1376 (2d Cir.
1991) (finding no disparate impact where, "though the disparity was
found to be statistically significant, it was of limited
magnitude").
As a gauge for measuring practical significance, the
department proposes the "four-fifths rule," a rule of thumb
developed by the Equal Employment Opportunity Commission (EEOC).
The four-fifths rule provides that where an employment practice
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results in a "selection rate" for any racial group less than four-
fifths of the "selection rate" for another group, these statistics
"will generally be regarded by [f]ederal enforcement agencies as
evidence of" disparate impact. 29 C.F.R. § 1607.4(D).12 For
example, if an employer hires 14% of black applicants and 20% of
white applicants, the four-fifths rule would indicate a disparate
impact, because fourteen is less than four-fifths of twenty.
The district court largely adopted the department's
position. The court concluded that a statistically significant
imbalance does not automatically constitute disparate impact where
12
The regulation provides in relevant part:
A selection rate for any race, sex, or ethnic
group which is less than four-fifths (4/5) (or
eighty percent) of the rate for the group with
the highest rate will generally be regarded by
the Federal enforcement agencies as evidence of
adverse impact, while a greater than four-fifths
rate will generally not be regarded by Federal
enforcement agencies as evidence of adverse
impact. Smaller differences in selection rate may
nevertheless constitute adverse impact, where
they are significant in both statistical and
practical terms or where a user's actions have
discouraged applicants disproportionately on
grounds of race, sex, or ethnic group. Greater
differences in selection rate may not constitute
adverse impact where the differences are based on
small numbers and are not statistically
significant, or where special recruiting or other
programs cause the pool of minority or female
candidates to be atypical of the normal pool of
applicants from that group. . . .
29 C.F.R. § 1607.4(D).
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practical significance is lacking, relying on the four-fifths rule
as a measure of practical significance.
In advocating for the adoption of a practical
significance requirement, the department does not press any
argument based on the text of Title VII. Indeed, the statutory
language provides little aid in deciding whether a nonrandom
difference is enough to make a prima facie showing of disparate
impact, or whether the difference must be large. For example,
Merriam Webster's dictionary defines "disparate" by using terms
such as "fundamentally different" and "markedly distinct," yet it
also lists as a synonym "different." Webster's New Collegiate
Dictionary 329 (8th ed. 1977); Merriam-Webster's Collegiate
Dictionary 360 (11th ed. 2003) (offering the same definitions and
synonym). The sparse and divided case law from other circuits also
fails to offer any clear answers.13
Several factors nevertheless do favor the district
court's conclusion that the size of a race-based differential in
outcomes matters, in some manner, in assessing disparate impact
claims. Of understandable importance to the district court, the
EEOC's guidelines are reasonably read as interpreting Title VII to
13
The various approaches of the other circuits is reflected
in the cases cited in footnote 9 above, as well as Waisome, 948
F.2d at 1376, and Apsley v. Boeing Co., 691 F.3d 1184, 1200-01
(10th Cir. 2012).
-23-
include a practical significance requirement.14 While the agency's
four-fifths rule itself has several significant weaknesses, which
we discuss below, the regulation establishing the rule shows that
the commission views practical significance, along with statistical
significance, as relevant in identifying a disparate impact. 29
C.F.R. § 1607.4(D). Similarly, the regulation provides that
disparities failing to satisfy the four-fifths rule may
nevertheless constitute disparate impact "where they are
significant in both statistical and practical terms." Id.Second, very small impacts are unlikely to be the product
of intentional discrimination. While proof of a disparate impact
claim requires no proof of intentional discrimination, the
disparate impact theory nevertheless serves, in part, to root out
hidden intentional discrimination. See Richard Primus, Equal
Protection and Disparate Impact, 117 Harv. L. Rev. 493, 498-99,
520-21 (2003). In a case in which a racial disparity is so small
as to be nearly imperceptible without detailed statistical
analysis, the likelihood that the disparity reveals a hidden intent
to discriminate is correspondingly small. Moreover, efforts to
eliminate small impacts may prove counterproductive due to the
14
Because "Congress, in enacting Title VII, did not confer
upon the EEOC authority to promulgate rules or regulations," the
agency's guidelines receive weight only to the extent of their
"power to persuade." E.E.O.C. v. Arabian Am. Oil Co., 499 U.S.
244, 257 (1991).
-24-
difficulty of concluding with confidence that an alternative
practice will truly lessen the already small effect.
Acknowledging the foregoing arguments favoring a
requirement that a difference in results associated with race be
practically significant and not only statistically significant, we
also confront powerful pragmatic arguments against adopting such a
requirement. To begin, the concept of practical significance is
impossible to define in even a remotely precise manner. We are
aware of no test generally accepted by statisticians that we might
employ to gauge practical significance (as we employ, for example,
the notion that a p-value less than five percent provides good
reason to presume that a difference in outcomes is not the result
of chance). With no objective measure of practical significance,
the label may mean that simply the person applying it views a
disparity as substantial enough that a plaintiff ought to be able
to sue over it. Courts would find it difficult to apply such an
elusive, know-it-when-you-see-it standard, let alone instruct a
jury on how to do so, and parties may find it impossible to predict
results.
This case illustrates these difficulties. In trying to
find a measure of practical significance, the district court turned
to the four-fifths rule. Although the four-fifths rule may serve
as a helpful benchmark in certain circumstances, both the Supreme
Court and the EEOC have emphasized that courts should not treat the
-25-
rule as generally decisive. See Watson v. Fort Worth Bank & Trust,
487 U.S. 977, 995 (1988) (noting that the rule "has been criticized
on technical grounds . . . and has not provided more than a rule of
thumb for courts"); 44 Fed. Reg. 11996-01 (explaining that the rule
was "not intended as a legal definition" and was "not intended to
be controlling in all circumstances"). We previously rejected
reliance on the four-fifths rule by a plaintiff in a case in which
the sample size was small, describing the rule as "not an accurate
test of discriminatory impact." Fudge v. City of Providence Fire
Dep't, 766 F.2d 650, 658 n.10 (1st Cir. 1985). And our sister
circuits have both minimized the importance of four-fifths rule and
criticized it directly. See, e.g., Stagi v. Nat'l R.R. Passenger
Corp., 391 F. App'x 133, 138 (3d Cir. 2010) (unpublished) ("[T]he
'four-fifths rule' has come under substantial criticism, and has
not been particularly persuasive."); Clady v. Los Angeles Cnty.,
770 F.2d 1421, 1428 (9th Cir. 1985) ("[T]he 80 percent rule has
been sharply criticized by courts and commentators.").
The four-fifths rule can lead to anomalous results. As
an illustration, imagine that a police department demographically
similar to the Boston Police Department--with approximately 500
black officers and 1200 white officers--implements a policy leading
to the termination of 90 black officers and no white officers. If
the "selection rate" is taken to be the rate at which employees
survived termination, cf. EEOC v. Joint Apprenticeship Comm. of
-26-
Joint Bd. of Elec. Indus., 164 F.3d 89, 97 (2d Cir. 1998)
(selection rate is the rate at which applicants pass a hiring
requirement), the four-fifths rule detects no disparate impact: 82%
of black employees survived, which is more than four-fifths of
100%, the rate at which white employees survived. Yet the policy
in this hypothetical illustration undoubtedly has a very
significant and disproportionate effect on black officers.
This illustration highlights several flaws in the four-
fifths rule. First, to apply the rule in cases involving the
selection of current employees for employment consequences such as
termination, courts must resolve the rule's ambiguity regarding
whether the "selection rate" is the rate at which employees were
selected for termination or the rate at which employees survived
termination.15 This choice can be decisive. In the above example,
if a court took the "selection rate" as the rate at which employees
were fired, the four-fifths rule would indicate a disparate impact,
because the 0% firing rate for white employees is less than four-
fifths of the 18% firing rate for black employees. Construing the
four-fifths rule in this manner, however, would lead to a different
15
The same dilemma can occur in cases involving hiring.
Consider an employer who considers only job applicants who have
never been convicted of a crime: the four-fifths rule does not
specify whether the "selection rate" should be the rate at which
applicants are excluded from consideration, or the rate at they are
included. See Green v. Missouri Pac. R.R. Co., 523 F.2d 1290, 1295
(8th Cir. 1975) (choosing the former approach, before the four-
fifths rule was promulgated).
-27-
problem: the rule would detect a disparate impact even if just one
employee were fired (a 0/1200 firing rate for white employees would
be less than four-fifths of a 1/500 firing rate for black
employees), a result that seems clearly incorrect.
Second, and relatedly, the consequences of the four-
fifths rule vary in a seemingly arbitrary way depending on the
magnitude of the selection rates at issue. In the example above,
the policy leads to the firing of 90 black officers, or 18% of the
population of black employees, but this disparity is not actionable
under the four-fifths rule. Yet, if the police department provided
a raise to just 1% of its white employees (12 of 1200 employees)
and 0.6% of its black employees (3 of 500 black employees), this
would qualify as actionable disparate impact under the four-fifths
rule, even though vastly fewer black employees were affected (and
less severely) than in the original scenario.
Conversely, the four-fifths rule makes no distinction
between an employment practice that leads to the firing of one of
nine black employees and a practice that leads to the firing of 100
of 900 black employees. In either case, the same percentage of
black employees is affected. Yet, the larger sample permits a much
stronger inference that a disparity is non-random and can be
expected to persist through future uses of the practice.
Notwithstanding these limitations, the four-fifths rule
may serve important needs in guiding the exercise of agency
-28-
discretion, or in serving as a helpful rule of thumb for employers
not wanting to perform more expansive statistical examinations.16
The rule itself has some practical utility. There is simply
nothing in that utility, however, to justify affording decisive
weight to the rule to negate or establish proof of disparate impact
in a Title VII case. Having previously rejected a plaintiff's
reliance on the four-fifths rule where a small sample size
precluded a showing of statistical significance, Fudge, 766 F.2d at658 n.10, we reject here the defendant's reliance on the four-
fifths rule to parry a proper statistical proof of a nonrandom
distribution in a case with a large sample size.
Our rejection of the four-fifths rule as suitable to
trump a showing of statistical significance leaves us with no
statute, regulation, or case law proposing any other mathematical
measure of practical significance. Nor as a matter of theory would
we expect to find any single measure of the size of the impact to
determine its practical significance. To fully assess practical
significance, one must consider the qualitative nature and weight
of the impact. See, e.g., Steve Goodman, The Dirty Dozen: Twelve
16
The fact that the four-fifths rule is only a rule of thumb
that does not always work does not mean that it can never provide
evidence of a nonrandom disparity. Thus, in Ricci v. DeStefano,
557 U.S. 557 (2009), the Supreme Court could cite pass rates of
37.5% for black and Hispanic candidates and 64% for white
candidates as supporting what all parties conceded was a disparate
impact. Id. at 586-87. Nothing in that citation supported use of
the test (again described as a "rule of thumb") to trump a more
scientific calculation of the actual statistical deviation.
-29-
P-Value Misconceptions, 45 Seminars in Hematology 135, 136-37
(2008). For example, just a small percentage increase in mild side
effects might not render a drug unsafe as compared to an
alternative drug, but the same percentage increase in fatalities
could well justify the elimination of the drug. So, too, an
employment practice that provides one part of a multi-part
promotion test has less practical impact on each employee than
does, for example, a practice that calls for the labeling and
firing of police officers as illegal drug users.
Ultimately, we find any theoretical benefits of inquiring
as to practical significance outweighed by the difficulty of doing
so in practice in any principled and predictable manner. We
therefore conclude 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.
Our confidence in rejecting a practical significance
requirement is bolstered by the fact that two other requirements to
be met by a plaintiff in a Title VII disparate impact case
indirectly secure most of the advantages that might be gained were
it possible to fashion a principled and predictable direct test of
practical significance. First, the very need to show statistical
significance will eliminate small impacts as fodder for litigation
in many instances because proving that a small impact is
-30-
statistically significant generally requires large sample sizes,
which are often unavailable. See, e.g., Fudge, 766 F.2d at 657-59.
Second, even in cases like this one, in which the data is
available, the subsequent steps required to successfully recover on
a disparate impact theory offer an additional safeguard. An
employer may rebut a prima facie case of disparate impact by
showing that its use of the challenged practice is "job related for
the position in question and consistent with business necessity,"
42 U.S.C. § 2000e-2(k)(1)(A)(i), and a plaintiff can prevail in the
face of demonstrated business necessity only by proving a failure
to adopt an alternative practice that would satisfy the
department's legitimate business needs "without a similarly
undesirable racial effect." Albemarle Paper Co. v. Moody, 422 U.S.
405, 425 (1979). See 42 U.S.C. § 2000e-2(k)(1)(c) (adopting case
law prior to June 4, 1989, "with respect to the concept of
'alternative employment practice'").
Proving that an alternative practice will not have the
impact identified by a plaintiff when that impact is small leaves
little margin for error and will often require extensive data. A
plaintiff who subjects a defendant's job-related practice to the
sensitivity of a large sample analysis can fairly be required to
show through statistical evidence, and with equal confidence, that
the proffered alternative practice will have a smaller impact,
-31-
except where the alternative is self-evidently incapable of causing
a differential (e.g., a random selection tool).
In this manner, the statute as designed by Congress
effectively assigns case-specific practical significance to the
size of the impact: as the size of the impact increases, so too
does the ease of demonstrating an alternative practice that reduces
the impact. And it is fitting that this relationship exists most
robustly only where the challenged practice can be justified by
business necessity. Where such necessity does not exist, most of
the reasons favoring some requirement of practical significance
disappear. In other words, if a practice fails to serve a
sufficient business need, why retain it merely because the number
of people harmed is small?
Because we have rejected both the department's limited
challenge to the plaintiffs' showing of statistical significance
and the department's advocacy of a practical significance
requirement, we see no remaining issue of fact that could permit a
reasonable jury to reject the plaintiffs' prima facie proof of
disparate impact. We therefore reverse the district court's
decision to deny partial summary judgment to the plaintiffs on that
component of their Title VII disparate impact case.
-32-
3. We decline to decide in the first instance whether
the drug testing program is "job-related . . . and
consistent with business necessity" and whether the
plaintiffs have offered an adequate alternative.
Once a plaintiff has made a prima facie showing of a
disparate impact, the burden shifts to the employer to show that
"the challenged practice is job related for the position in
question and consistent with business necessity." 42 U.S.C. §
2000e-2(k)(1)(A)(i). If the employer makes such a showing, a
plaintiff has one final path to success, by proving the existence
of an "alternative employment practice," 42 U.S.C. § 2000e-
2(k)(1)(A)(ii), defined in case law as a different "test or
selection device[], without a similarly undesirable racial effect,"
which "also serve[s] the employer's legitimate interest . . . .,"
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). If a
plaintiff makes such a showing, and the employer "refuses to adopt
such alternative employment practice," then the plaintiff prevails.
42 U.S.C. § 2000e-2(k)(1)(A)(ii).
The department invites us to consider on this appeal
whether it has established that its hair testing program satisfies
the business necessity defense under the disparate impact
provisions of Title VII. Supreme Court decisions illustrate that
-33-
the defense has two main components.17 First, the department must
show that its program aims to measure a characteristic that
constitutes an "important element[] of work behavior." Albemarle
Paper Co., 422 U.S. at 431; see also Dothard v. Rawlinson, 433 U.S.
321, 331 (1977) (holding that an employer satisfied this
requirement by showing that the challenged practice measured a
characteristic "essential to effective job performance"). Second,
the department must show that the outcomes of the drug testing
program are "predictive of or significantly correlated with" the
characteristic described above. Albemarle Paper Co., 422 U.S. at
431.18
Here, the plaintiffs have not disputed that abstention
from illegal drug use is an important element of police officer
behavior. They have admitted that the department has a "legitimate
purpose of ensuring a drug-free workplace." What remains to be
determined, then, is whether the results of the department's drug
testing regime are "predictive of or significantly correlated with"
17
According to the "Purposes" section of the 1991 statute
that added the disparate impact provision to Title VII, Congress
aimed to "codify the concepts of 'business necessity' and 'job
related' enunciated by the Supreme Court in Griggs . . . and in
other Supreme Court decisions prior to Wards Cove Packing Co.
[decided in 1989]." Pub L. No. 102-166, § 3(2), 105 Stat. 1071,
1071 (1991).
18
Our articulation of this two-part test is substantially the
same as the three-part inquiry adopted by the Ninth Circuit. See
Association of Mexican-Am. Educators v. California, 231 F.3d 572,
585 (9th Cir. 2000) (en banc).
-34-
drug use. The plaintiffs have asserted that hair testing is not
"sufficiently reliable to be job-related and justified by business
necessity." But they have presented little if any evidence that
could allow a jury to conclude that the drug test is so unreliable
that its results have no significant correlation with drug use.
Indeed, even their own evidence, if believed, would offer cause to
question the accuracy of only some of the reported results, without
indicating that there is a relatively large number of false
positives compared to the size of the police force. On the other
hand, the department, not the plaintiffs, carries the burden to
prove that the program's results are significantly correlated with
actual drug use.
In their reply brief, the plaintiffs argue that, for the
purposes of proving the business necessity defense, the department
must separately defend more than a dozen different versions of the
test used over eight years. Such an argument flies in the face of
the plaintiffs' position that multiple years of test results are
properly aggregated as arising from a single practice in
establishing a prima facie disparate impact claim. See Fudge v.
City of Providence Fire Dep't, 766 F.2d 650, 657 (1st Cir. 1985).
We reject the plaintiffs' about-face as both unpreserved and
unfairly inconsistent with their assumption that they were all
subjected to a single challenged practice.
-35-
Given that this case has already spanned many years (as
did the post-termination administrative process), we are tempted to
accept the department's invitation to assess whether genuine issues
of material fact remain concerning its business necessity defense.
In view of the size of the record, though, and the fact that the
district court judge who has presided over this case has not yet
parsed that record to assess business necessity or its rejoinder,
we decline to do so in the first instance. Federal appellate
courts have discretion in deciding whether to take up questions not
considered below, but they generally should not do so. Singleton
v. Wulff, 428 U.S. 106, 120 (1976). We see no reason to depart
from that general practice here.19
With the business necessity question left open for
further consideration, we have no occasion to consider whether the
plaintiffs' evidence will prove sufficient to show that "the
employer refuses to adopt an available alternative employment
practice that has less disparate impact and serves the employer's
legitimate needs." Ricci v. DeStefano, 557 U.S. 557, 578 (2009)
(citing 42 U.S.C. §§ 2000e-2(k)(1)(A)(ii) and (C)). We reiterate,
however, our statement above concerning the manner in which the
19
In declining to decide the issues in the first instance,
we do not suggest that the district court must reopen the record to
allow further discovery or expert reports. The district court
retains its customary discretion to manage the case, and we expect
that it will give due weight to the fact that each party has
already had ample time to put its best foot forward.
-36-
plaintiffs must prove that any such alternative practice would
produce a smaller racial disparity in outcomes than does the
department's current system.
B. Due Process
The plaintiffs contend that the drug testing program not
only caused a disparate impact but also violated their rights under
the Fourteenth Amendment of the United States Constitution. The
Due Process Clause of the Fourteenth Amendment prohibits states
from "depriv[ing] any person of life, liberty, or property, without
due process of law." The plaintiffs contend that they were not
afforded sufficient process in connection with their terminations
(or other adverse action against them), and seek damages under 42
U.S.C. § 1983.
1. Nine of the plaintiffs had a constitutionally-
protected interest in their employment.
When a public employee can be fired only for cause under
state law, that employee has a property interest in continued
employment. Gilbert v. Homar, 520 U.S. 924, 928-29 (1997). Here,
the department concedes that the seven fired police officers had a
property interest in their employment. The department also does
not dispute that the fired cadet had a property interest in her
employment. And the department does not dispute that Rachelle
Couch, who signed the settlement agreement and continues to work
for the department, was deprived of a property interest, presumably
the approximately two months of pay she lost during her suspension.
-37-
The department asserts, however, that plaintiff
Clararise Bristow had no interest entitling her to due process. We
agree. Bristow was an applicant for a position at the department
who in December 2002 received a letter conditionally offering her
the job. The letter read: "If you successfully pass the medical
examination and hair drug testing components of the screening
process, you will be tendered a final offer of employment."
This circuit has not decided whether a contingent offer
of employment can create a property interest under the Due Process
Clause. It is clear, however, that the interest created by a
conditional job offer can be no stronger than that created by an
unconditional job offer, and that this interest in turn rises no
higher than that possessed by someone who has recently begun work
in the position. Here, this logic leads to the conclusion that
Bristow was not entitled to due process.
In Massachusetts, public workers begin their employment
with a six-month probationary period during which they do not have
the protection from termination without just cause afforded to
tenured employees.20 See Mass. Gen. Laws Ann. ch. 31, § 34; Costa
v. Bd. of Selectmen, 377 Mass. 853, 859-60 (1979). Thus, had
20
We do not consider whether the six-month probationary
period could have been or was supplanted under the terms of a
collective bargaining agreement. See Mass. Gen. Laws Ann. ch.
150E, § 7. The plaintiffs do not assert that Bristow would have
been covered by a collective bargaining agreement that preempted
the probationary period, nor have they submitted evidence that
could support such an argument.
-38-
Bristow received an unconditional offer of employment, and indeed
begun work as an officer, her job would have terminable with or
without cause for six months. We have previously observed that
probationary employees in Massachusetts do not have a property
interest in their continued employment. See Brennan v. Hendrigan,
888 F.2d 189, 195 (1st Cir. 1989); see also Dasey v Anderson, 304
F.3d 148, 156-61 (1st Cir. 2002). Consequently, even had Bristow
begun to work, she would have had no cognizable property interest
in continued employment during the entirety of her probationary
period. A fortiori, having not begun work, Bristow also had no
cognizable property interest based on the job offer alone. We make
no comment on whether the conditional offer of a job not subject to
a probation period might, on other facts, be sufficient to grant a
due process right to its recipient.
2. The department provided sufficient process.
The Supreme Court has held that "[t]he fundamental
requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner." Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (internal quotation marks omitted).
Although the precise contours of this guarantee vary depending on
the circumstances, public employees are ordinarily entitled to
notice of the reasons for a proposed termination, an explanation of
the evidence supporting those reasons, and an opportunity to give
their side of the story at a pre-termination hearing. See
-39-
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985);
Calderón-Garnier v. Rodríguez, 578 F.3d 33, 38 (1st Cir. 2009).
When a state employee in the ordinary course terminates another
employee who has a property interest in his or her job, the state
normally cannot satisfy due process solely through post-termination
process. See Loudermill, 470 U.S. at 542; Cotnoir v. Univ. of
Maine Sys., 35 F.3d 6, 12 (1st Cir. 1994) ("Where an employee is
fired in violation of his due process rights, the availability of
post-termination grievance procedures will not ordinarily cure the
violation."). As the Supreme Court has explained, a pre-
termination hearing should provide "a meaningful opportunity to
invoke the discretion of the decisionmaker," both as to the facts
supporting the termination and as to its broader appropriateness.
Loudermill, 470 U.S. at 543.
Here, there is no dispute that employees subject to
termination for a positive drug test were offered an opportunity to
contest their impending firing at a pre-termination disciplinary
hearing. Although the plaintiffs claim that some of those who were
fired never had such a hearing, they concede that all were offered
one. And, indeed, Massachusetts state law mandates that public
employees, before being fired, receive notice of the reasons for
their termination and the opportunity to protest their firing at an
evidentiary hearing. Mass. Gen. Laws ch. 31, § 41. This statutory
process allowed employees to present their side of the story,
-40-
through both testimony and evidence, and even to cross-examine
adverse witnesses. The plaintiffs lodge only one complaint about
the process, claiming that some of the fired employees were barred
from presenting evidence of drug tests taken by the employees
outside of the department's program. In one case, the department's
chief hearing officer refused to accept results from an outside
hair test in part because there was not sufficient information
regarding the reliability of the test. She also refused in at
least two cases to accept results from a urine test, calling urine
tests and hair tests "apples and oranges," presumably because urine
tests have a much shorter window of detection.
While we do not necessarily agree that the evidence was
unworthy of consideration, we find no constitutional violation in
its exclusion. Even in criminal trials, the state has some leeway
in crafting and applying reasonable evidentiary rules. See United
States v. Scheffer, 523 U.S. 303, 308 (1998); Montana v. Egelhoff,
518 U.S. 37, 43 (1996). The Supreme Court has ruled, for example,
that a state did not violate the Due Process Clause where it barred
a defendant accused of drug use from presenting a polygraph test
indicating that he truthfully denied the charge. See Scheffer, 523
U.S. at 312. The department here was entitled to make a similar
determination as to evidence that was possibly exculpatory but
arguably unreliable or irrelevant.
Even if exclusion of the evidence rose to the level of a
-41-
constitutional violation, that error would have been adequately
addressed through the extensive civil service appeals process, in
which terminated employees were permitted to present evidence of
outside drug tests. This process involved full hearings before the
impartial Massachusetts Civil Service Commission. Although we have
explained that some pre-termination process is required before the
state fires an employee, an extensive post-termination appeal
system lessens the need for an elaborate pre-termination process.
See Mard v. Town of Amherst, 350 F.3d 184, 192 (1st Cir. 2003)
(finding a "limited" pre-termination hearing constitutionally
sufficient given "the availability of more rigorous post-
deprivation procedures"). Together, the pre-termination
disciplinary hearings and the post-termination appeals process
easily satisfied the state's obligation to provide due process.21
Finally, the district court correctly granted summary
judgment on the due process claim of plaintiff Rachelle Couch, the
employee who chose an unpaid suspension rather than termination.
21
The plaintiffs complain that the civil service appeals
process took a long time, and indeed it did, as much as ten years
for some. Yet, the Civil Service Commission explained in an
opinion applying to many of the plaintiffs that "the unusual delay
in bringing these appeals to hearing is due, in significant part,
to the decisions of the [employees]," for example in asking for
continuances. We cannot find a constitutional flaw in delay where
the plaintiffs contributed significantly to that delay and do not
attempt to demonstrate that any delay would have occurred absent
their own decisions. The plaintiffs also say that two of the fired
employees "were not a part of the Civil Service Commission
proceedings," but because the plaintiffs do not provide any further
explanation we must assume that this lack of participation was
voluntary.
-42-
Our discussion above demonstrates that the department would have
fulfilled its constitutional obligation to Couch if it had simply
fired her, following its normal termination procedures. Instead,
the department gave Couch a choice, albeit a very difficult one.
The injection of additional choices cannot convert a constitutional
process into an unconstitutional one.
C. Americans with Disabilities Act
The plaintiffs next claim that the department fired them
(or subjected them to other adverse employment action) on account
of an erroneous perception that they were drug addicts, thereby
violating the Americans with Disabilities Act. The ADA protects
individuals who have a "disability," defined as a "physical or
mental impairment that substantially limits one or more major life
activities." 42 U.S.C. § 12102(1)(A). The Act also covers those
who are regarded as having a physical or mental impairment, so long
as the perceived impairment is not "transitory and minor." 42
U.S.C. § 12102(1)(c), (3).
Individuals who are recovering from an addiction to drugs
may be disabled in the meaning of the ADA, as the statute aims to
protect them from the stigma associated with their addiction. See
42 U.S.C. § 12114(a), (b); cf. Bailey v. Georgia-Pac. Corp., 306
F.3d 1162, 1167 (1st Cir. 2002) (holding that "alcoholism is an
impairment" under the ADA). Similarly, the ADA protects those who
are erroneously perceived as drug addicts. 42 U.S.C.
-43-
§ 12114(b)(3), (a). Importantly, though, the statute explicitly
excludes from protection any individual who is currently using
drugs, whether addicted or not, when the employer acts on the basis
of such use. 42 U.S.C. § 12114(a). All of this means, in a
nutshell, that in order to survive summary judgment dismissing
their claim under the ADA, the plaintiffs must provide a factual
basis upon which the jury could find that the department fired them
either because they were addicts or because it perceived they were
addicts, rather than because, as a result of the drug tests, it
believed them to be currently using illegal drugs. See Raytheon
Co. v. Hernandez, 540 U.S. 44, 52-53 (2003) (holding that, in a
disparate treatment claim under the ADA such as this one,
plaintiffs must show that their perceived disability "actually
motivated the employer's decision").22
The plaintiffs made no such showing. To the contrary,
the evidence is that the department trained its efforts at directly
identifying users, whether addicts or not. And if the test results
may have caused the department to form an erroneous view of any
plaintiff, that view--to the extent it motivated termination--was
that the plaintiff was a drug user, not that the plaintiff was an
addict. Nor did the department accept any defense that an officer
22
Although the distinction may be subtle, the plaintiffs do
not allege a disparate impact claim under the ADA, even if one
might have been available. See Raytheon, 540 U.S. at 52 (making
clear that disparate impact claims can be pursued under the ADA).
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used illegal drugs only once, or was otherwise not addicted.
Indeed, the very existence of the rehabilitation program shows that
the department was willing to retain employees who were addicted as
long as they are not users. On this record, no jury could
reasonably conclude that the department was motivated by a
perception that plaintiffs were addicted to drugs. See Lopez v.
Pac. Mar. Ass'n, 657 F.3d 762, 764 (9th Cir. 2011) (affirming grant
of summary judgment to an employer on an ADA claim because "the
triggering event for purposes of [rejection of a job application]
is a failed drug test, not an applicant's drug addiction"); Salley
v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998)
(holding that no jury could find that the plaintiff was fired for
his drug addiction rather than misconduct, whether or not the
misconduct was caused by addiction).
D. Failure to Train and Supervise
The plaintiffs also claim that the department violated
their constitutional rights due to its failure to sufficiently
train and supervise the staff carrying out the program. The
failure to train theory offers a way for plaintiffs to hold a
municipality liable under 42 U.S.C. § 1983 for the acts of its
employees. See Hayden v. Grayson, 134 F.3d 449, 456 (1st Cir.
1998). Typically, a plaintiff first identifies a constitutional
violation (often related to police misconduct) and then attempts to
show that the violation was the direct result of poor training or
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supervision of municipal employees, stemming from "deliberate
indifference to the rights of persons with whom the [employees]
come into contact." Id. To prevail, the plaintiff must show that
the constitutional violation had a "direct causal link" to the
deficiency in training. Canton v. Harris, 489 U.S. 378, 385
(1989).
Here, the plaintiffs focus extensively on evidence of
poor training but fail to produce any evidence that would allow a
jury to reasonably conclude that this poor training caused a
constitutional violation. Indeed, the plaintiffs fail to clearly
identify in their brief any constitutional provision allegedly
violated as a result of poor training. At best, the plaintiffs
simply postulate without analysis violations of the Due Process
Clause and Equal Protection Clause.
As to the first, we have explained above that the
plaintiffs were not deprived of liberty or property without due
process of law. Consequently, there can be no liability for such
a violation, whether on a failure to train theory or otherwise.
As to the second, and even assuming that plaintiffs'
evidence of disparate impact under Title VII would have sufficed to
survive summary judgment on an equal protection claim,23 the
plaintiffs fail to point to any evidence indicating that training
23
The plaintiffs raised such a claim below but declined to
pursue it on appeal.
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so poor as to constitute actionable indifference caused them to
test positive. We therefore affirm the grant of summary judgment
to the department on the failure to train claim.
IV. Conclusion
The plaintiffs have proven beyond reasonable dispute a
prima facie case of disparate impact under Title VII, while the
department has proffered an uncontested legitimate need to identify
those few of its members who use illegal drugs. What remains to be
assessed by the district court is whether the department's drug
testing program advances that goal and, if so, whether the
plaintiffs can carry their burden of proving a failure to adopt an
available alternative that meets the department's legitimate needs
while reducing the disparate impact on black employees of the
department.
For these reasons, we vacate the district court's grant
of summary judgment on the Title VII claims; we reverse the
district court's denial of partial summary judgment for all
plaintiffs on the question of whether they have proved a prima
facie case of disparate impact under Title VII; we otherwise affirm
the district court opinion; and we remand for further proceedings
consistent with this opinion. The district court will decide at
the time of final judgment whether costs of this appeal are to be
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shifted in favor of a finally prevailing party under any applicable
statute.
So ordered.
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