• • Case 1:05-cv-11832-GAO Document 1-3 Filed 09/09/05 Page 1 of 25

COJ'.1:M:ONWEALTH OF MASSACHUSETTS

SUFFOLK, ss:

. )

RONNIE JONES, RICHARD

)

BECKERS, WALTERR.

)

WASHINGTON, WJLLIAM E.

)

BRIDGEFORTII, SHAWN N. HARRIS, )

EUGENE WADE, GEORGE~

)

DOWNING, JR., CLARARISE

)

BRISTOW, and the MASSACHUSETTS }

ASSOCIATION OF MINORITY LAW )

ENFORCEMENT OFFICERS,

)

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BOSTON, BOSTON

)

POUCEDEPARTMENT,and

)

KATHLEEN O'TOOLE, as she is

)

Commissioner ofthe Boston Police

)

Department,

)

)

Derendan~.

)

SUPERIOR COURT TRIAL DEPARTMENT
OS-()3/dE
NO.
Uft.5" ~ 1.1 8 3 2 GA.O

COMPLAINT AND JURY DEMAND Introduction
1. This is a civil righ~ action to redress the deprivation of rights guaranteed by the
Constitutions and laws of the United States and the Commonwealth of Massachusetts. Pursuant to the Boston Police Department's SubStance Abuse Policy, the defendan~ have, since 1999, unlawfully based employment decisions upon the resul~ of a flawed, imprecise, unreliable, arbitrary, and racially biased mandatory drug test performed on hair samples (the "Hair Test").
2. The plaintiffs have no objection to the concept of the mandatory drug-testing of law enforcement officers and applicants for employment as law enforcement officers. The

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plai:i:ttiffs contend, however, that the defendants' use of the Hair Test is unlawful because, among other reasons, it (a) has a disparate, adverse, and discriminatory impact on Boston police officers and applicants of color; (b) is used despite the availability of alternative testing methods and procedures that would have Jess disparate,·adverse, and discriminatory impact on Boston police

officers and applicants of color; and (c) constitutes discrimination on the basis of a false and
erroneous perception that the plaintiffs had a disability.
. '
3. Upon infori:nation and belief, there are currently no govermnent-mandated
guidelines for testing hair samples for the presence of illegal drugs. Nor are there such

guidelines conceming collection procedures or cut-off levels for the Hair Test used by the defendants. In addition, scientific studies demonstrate that the. procedures used .by the defendants to test hair samples for the presence of illegal drugs are flawed, imprecise, arbitrary, unreliable, and inherently biased agai:i:tst people of color. For example, upon information and belief, the procedmes and methods used in performing the Hair Test cannot identify whether a result that is positive for the presence of illegal drugs is due to ingestion or to external contamination from environmental exposure. In addition, the Hair Test has an inherent propensity to yield false positives on hair samples taken from persons of color because of the composition of the hair itself and other factors. Indeed, upon information and belief, the Society ofForensic Toxicologists considers the testing of hair samples for the presence of illegal drugs to be too unreliable to be used in making individual employment decisions.
4. Seven of the plai:i:ttiffs are former Boston police officers - "former," because they were wrongfully terminated on the basis of their allegedly positive results on the Hair Test. Another plaintiff was denied employment on the same basis. The plai:i:ttiffs who were tenninated each served with distinction, including commendations and medals, for between 4 and 28 years; collectively, for nearly 100 years.
5. Each of the plai:i:ttiffs vehemently denies using illegal drugs. The plaintiffs' allegedly positive results on the Hair Test is the only "evidence" of illegal drug use by the plaintiffs that was considered by the defendants in making their adverse employment decisions

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against them. Significantly, all but one ofthe plaintiffs obtained results negative for .the presence of illegal drugs in independent hair drug tests performed soon after the allegedly positive result on the Hair Test lised by the defendants. Indeed, the independent hair drug tests of some of the plaintiffs were performed by the very same laboratory that performed the Hair Tests on which they had allegedly tested positive. In the case of one plaintiff, the negative and allegedly positive results were obtained from tests performed by the very same laboratory on hair samples taken on the very same day.
6. The defendants' use of the Hair Test in making employment decisions disproportionately and adversely impacts police officers and applicants of color and constitutes unlawful discrimination on the basis of race as well as on the basis of a false and .erroneous perception of a disability. As a consequence of the defendants' policies, customs, practices, and conduct with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions, the plaintiffs have been terminated from their employment with the Boston Police Department or have been forced to sign documents falsely stating that they have requested drug rehabilitation treatment and agreeing to undergo such treatment at their own expense. The result is the ruination of the lives, careers, and reputations ofthe plaintiffs.
7. Among the damages that the plaintiffs have suffered and continue to suffer as a consequence of the defendants' policies, customs, practices, and conduct are, without limitation, Joss of compensation, benefits, seniority, and employment opportunities, lost careers, damaged reputations, loss of standing in the community, humiliation, mental pain, anguish, and severe emotional distress.
Jurisdiction and Venue 8. The plaintiffs' civil rights claims are based upon Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e, et. seq.; Title I of the Americans with Disabilities Act of 1990, codified at 42 U.S.C. § 12101, et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. lSlB; Mass. Gen. Laws ch.

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93, § 103; Mass. Gen. Laws ch. 12, §§ llH and Ill; Articles 1, 10, 11, and 12, and Article of Amendment 114 of the Massachusetts Declaration of Rights. This Court has subject matter jurisdiction over the plaintiffs' claims pursuant to Mass. Gen. Laws ch. 212, §§ 3, 4; Mass. Gen. Laws ch. 231A, § 1; Mass. Gen. Laws ch: 12, §§ llH, Ill; 28 U.S.C. § 1343; and 42 U.S.C. § 12117.
9. All plaintiffs have exhausted the necessary administrative prerequisites. Prior to
••
filing this civil action, each plaintiff timely filed written Charges of Discrimination, asserting claims of discrimination, with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission ("EEOC"). This civil action is filed within two years of the discriminatory acts alleged in this Complaint and within 90 days of Righ! to Sue letters from the EEOC.
I0. Venue is proper in Suffolk County pursuant to Mass. Gen. Laws ch. 223, § I. Parties
11. Defendant City of Boston· ("City") is a municipality of the Commonwealth of Massachusetts and owns, operates, manages, controls, and is responsible for the actions of the Boston Police Department. The City is an "employer" within the meanings of 42 U.S.C. § 2000e, 42 U.S.C. § 12111(5), and Mass. Gen. Laws Chapter 151B, and is subject to suit under all ofthe claims alleged in this Complaint.
12. Defendant Boston Police Department ("BPD") is a paramilitary law enforcement organization of the City. The BPD is an "employer" within the meanings of Title VII, 42 U.S.C. § 2000e, 42 U.S.C. § 12111(5), and Mass. Gen. Laws ch. 151B and is subject to suit under all of the claims alleged in this Complaint.
13. Defendant Kathleen O'Toole is the current Commissioner of the BPD. As is relevant to this Complaint, Commissioner O'Toole is responsible for making, implementing, permitting, and overseeing the BPD's (a) policy decisions; (b) customs and practices; (c) training and supervision ofBPD employees; and (d) acts and omissions with respect to all allegations and claims set forth in this Complaint. Commissioner O'Toole is sued in her official capacity.

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14. Plaintiff Ronnie Jones is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1983 and provided approximately nineteen years of service until he was wrongfully terminated on or about August 9, 2002. Officer Jones had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
. 15. Plaintiff Richar'd Beckers is an African-American male who resided in Suffolk
County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1989 and provided approximately thirteen years of service until he was wrongfully terminated on or about August 9, 2002. Officer Beckers had an excellent service record that was free of_warnings or disciplinary actions related to drug abuse. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
16. Plaintiff Walter Washington is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1989 and provided approximately fourteen years of service until he was wrongfully terminated on or about April 22, 2003. Officer Washington had an excellent service record that was free ~f warnings or disciplinary actions related to drug abuse. During his service, Officer Washington received the BPD Medal of Honor twice, as well as the Hanna Award for valor and numerous letters of commendation from the BPD. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
17. Plaintiff William Earl Bridgeforth is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. During the time of the acts complained of herein, he was a resident of Suffolk County, Massachusetts. He joined the BPD in 1989 and provided approximately fourteen years of service before he was wrongfully terminated on or about September 11, 2003. Officer Bridgeforth had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. He had taken and passed

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a mandatory annual drug test every year that it was administered prior to a Hair Test upon which

the defendants based their adverse employment decisions, including the decision to terminate his employment.

18. Plaintiff Shawn N. Harris is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1999 and provided approximately four years of service before he was wrongfully terminated on or
• about April22, 2003. Officer Harris had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. During his service, Officer Harris received the BPD Medal of Honor, as well as the Hanna Award for valor; a commendation from prior Boston

Police Commissioner Paul Evans; and several letters of appreciation from community _residents. He had taken and passed a mandatory annual drug test every year that it was administered prior

to the Hair Test upon which his termination was based.

19. Plaintiff Eugene Wade is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1975.

He was promoted to sergeant in 1985 and to sergeant-detective in 1992. He provided

approximately 28 years of service before he was wrongfully terminated on or about February 6,
2003. Sergeant-Detective Wade had an excellent service record that was free of warnings or '
disciplinary actions related to drug abuse. He had taken and passed a mandatory annual drug test

every year that it was administered prior to the Hair Test upon which his termination was based. 20. Plaintiff George C. Downing, Jr. is an African-American male who resided in
Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD

in 1995 and provided approximately eight years of service before he was wrongfully terminated on or about January 6, 2004. Officer Downing had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. He had taken and passed a mandatory

annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
21. Plaintiff Clararise Bristow is an African-American female who resided in Suffolk

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County, Massachusetts during all times relevant to this Complaint. The BPD extended an offer of employment to Ms. Bristow in December 2002, but wrongfully refused to make her a permanent offer a short time later, based upon the same Hair Test administered to the other plaintiffs.
22. The Massachusetts Association of Minority Law Enforcement Officers (''MAMLEO") represents the interests of all BPD law enforcement personnel and applicants of
,
color, including the interestS of the plaintiffs and others who have been, or may be, adversely affected by the Hair Test. MAMLEO has offices in Suffolk County, Massachusetts.
Factual Allegations The BPD's Substance Abuse Policy and tbe Challenged Hair Test 23. Beginning in 1999, the Hair Test has been administered annually to all sworn uniformed employees of the BPD, pursuant to the BPD's Substance Abuse Policy, as stated in BPD Rule 111, dated December 17, 1998 (the "Substsnce Abuse Policy").1 The BPD purportedly instituted the mandatory Hair Test in order to detect unlawful drug use that allegedly took place during the previous weeks or months. 24. Although union representatives agreed to the Hair Test as part of collective bargaining agreements, this consent was secured on the basis of the defendants' misrepresentations that the Hair Test would be "conducted through a fair, reasonable, and objective hair analysis testing system," Substance Abuse Policy(V)(G), and without the union representatives' knowledge of the arbitrary, unreliable, unfair, and discriminatory nature and use of the Hair Test. 25. The Substance Abuse Policy specifically states that the "[t]he [BPD] agrees that it
will establish and adhere to written collection and testing procedures for hair samples"; that
"{t]hese procedures shall be fair and reasonable so as to ensure the accuracy and integrity of the

1Although the Hair Test on BPD patrol officers began in 1999, testing of the detectives, sergeant-detectives, and superior officers was implemented in succession, starting in the year 2000.

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test and process"; and that [t]hese written procedures will be appended to this Rule and become incorporated thereto." Substance Abuse Policy(V)(G).
26. The Hair Test is administered by the City's Occupational Health Department (the ''He-<llth Department"). Among other things, Health Department personnel are responsible for collecting hair samples and transmitting them to the laboratory for testing.
27. With respect to officers already employed by the BPD, the Substance Abuse Policy requires that the Hall: Test be administered annually during the thirty-day period before or after the police officer's birthday. The BPD determines the date for the test and notifies the officer several days in advance. The Hair Test also applies to all applicants for the position of sworn police officer with the BPD.
28. According to the Substance Abuse Policy, the BPD uses the Hair Test to determine "the presence of these five drugs, classes of drugs, or their metabolites: marijuana metabolites, cocaine metabolites, opiate metabolites, phencyclidine (PCP), and amphetamines." Substance Abuse Policy(V)(G). The Substance Abuse Policy provides that hair samples are to be collected by Health Department personnel and sent for testing by a licensed laboratory certified to test hair samples for the presence of illegal drugs.
29. Although several companies conduct illegal-drug testing on hair samples, the BPD contracts exclusively with Psychemedics Corporation ("Psychemedics") to perform the Hair Test on hair samples collected by Health Department personnel and to report the results. Upon information and belief; Psychemedics is not certified by the United States Department of Health and Human Services ("HHS") under its National Laboratory Certification Program. Upon information and belief, Psychemedics is not certified by the United States Food and Drug Administration ("FDA") and has never received federal certification to test either urine or hair for the presence of illegal drugs.2

2As of December 5, 2003, Psychemedics was not certified to meet the standards of the Mandatory Guidelines for Federal Workplace Dmg Testing. See 68 .Fed. Reg. 68091-102
(December 5, 2003).

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30. Under the procedures utilized by Psychemedics and the defendants, a hair sample provided to Psychemedics by the Health Department is initially tested by radioimmunoassay. If this test yields a positive result for the presence of illegal drugs, Psychemedics then tests the sample using a combination of chromatography and mass spectrometry methodologies. If there is again a positive result, this is reported to the BPD's Medical Review Officer, pursuant to the Substance Abuse Policy. Although the Substance Abuse Policy does not specify cut-off levels
. ,
for distinguishing between positive and negative results with respect to the presence of illegal drugs in hair samples, Psychemedics reP?rts a finding of cocaine at a level of Sngi!Omg or more as a positive result and lower levels of cocaine as a negative result.3 Pursuant to the Substance Abuse Policy, if the affected officer cannot provide an alternative medical explanation. for the positive result, the Medical Review Office reports the Hair Test as positive for the presence of illegal drugs to the BPD.
31. The Substance Abuse Policy provides that, in the event that a positive result is reported to the BPD, the affected officer may request an additional "Safety Net" test within 72 hours ofreceipt ofthe initial test results. Under the procedures utilized by Psychemedics and the defendants fur the "Safety Net" test, a second hair sample is to be taken from the same body site as the original hair sample. The same tests are performed on the new sample as on the origin~! sample, but a lower cut-off level is used to distinguish between positive and negative results. Although the Substance Abuse Policy does not specify cut-off levels for distinguishing between positive and negative results with respect to the presence of drugs on the Safety Net test, Psychemedics currently reports a finding of cocaine at a level of 0.2ng/10mg or more as a positive result and lower levels of cocaine as a negative result on the Safety Net test. Psychemedics previously used a cut-off level of 2.0ng/10mg on the Safety Net test, which is an order of magnitude higher than the current cut-off level. Pursuant to the Substance Abuse

3A nanogram ("ng") is one billionth of a gram; a milligram ("mg") is one thousandth of a gram.

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Policy, the affected officer must pay for the Safety Net test and its review by the Medical Review

Officer unless the result on the Safety Net test is negative.

32. A sworn officer or applicant whose Hair Test is reported to the BPD as positive is
subject to termination or denial of employment, as the case may be. In the case of a sworn

officer who tests positive on the Hair Test for the first time, the Substance Abuse Policy provides

that the BPD may offer an alternative to tenniuation: a 45-day suspension without pay and execution of a "Rehabilitation Agreement." This Agreement fulsely states that the officer has,

requested drug rehabilitation treatment and agrees to undergo such treatment at his or her own

expense, and requires placement in an administrative position; suspension of weapon-carrying privileges until a treatment provider certifies recovery; and submission to follow-up rand~m drug

testing for the next three years. Problems with the HairTest

33. According to the defendants, each of the plaintiffs tested positive for cocaine on

an initial Hair Test and on a follow-up Safety Net test performed by Psychemedics. Each ofthe seven sworn-officer plaintiffs had excellent service records during their employment with the

BPD (ranging from 4 to 28 years), and none had previously been the subject of a past complaint for behavior indicative of illegal drug use. For several years prior to the Hair Test th~t precipitated their wrongful discharge, each of the seven sworn-officer plaintiff]; had submitted to

a mandatory annual drug test, including a Hair Test. All of these previous tests had been

negative and each of the plaintiffs vehemently denies using illegal dmgs.

34. All but one of the plaintiffs obtained results negative for the presence of illegal

drugs in independent hair drug tests performed soon after their allegedly positive Hair Test

results were reported. Indeed, the independent hair drug tests of some of the plaintiffs were performed by the very same laboratory that performed the Hair Tests on which they had allegedly tested positive. That is, the very same laboratory ratumed both negative and allegedly

positive results on hair samples taken from these plaintiffs. In the case of one plaintiff, the negative and allegedly positive results were obtained from tests performed by the very same

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laboratory on hair samples taken on the very same day. In the case of another plaintiff, the negative and allegedly positive results were obtained from tests performed on hair samples taken only one day apart. The defendants have failed and refused to consider independent tests indicating that the plaintiffs were drug-free at the time of the Hair Test that falsely and erroneously indicated illegal drug use.
. 35. Although each of the seven sworn-officer plaintiffs was offered an opportunity to
,
avoid termination by sigi:ring the Rehabilitation Agreement, this Agreement requires an admission of .illegal drug use; drug treatment; placement in an administrative position; suspension of weapon-carrying privileges until a treatment provider certifies recovery; and submission to follow-up random drug testing for the next three years. Six of the officers _refused because they did not use illegal drugs. These officers were terminsted. The seventh officer accepted the Rehabilitation Agreement, notwithstanding that he did not use illegal drugs, in order to keep his job. He was reinstated but was terminated after he allegedly tested positive on the Hair Test a year later, despite the fact that ·he tested negative on ten or eleven random urine tests during that year.
36. Upon infom1ation and belief, there are currently no government-mandated guidelines for testing hair samples for the presence of illegal drugs. Nor are there sucp. gnidelines concerning collection procedures or cut-off levels for the Hair Test used by the defendants.4
37. The defendants rely exclusively on the work of one laboratory, Psychemedics, to perform all Hair Tests for the BPD and have r«iected all independent tests that refute the results

~e Mandatory Guidelines for Federal Workplace Drug Testing Programs, initially published by the HHS in the Federal Register on April 11, 1988 (53 FR 11970-89) and extensively revised in the Federal Register on June 9, 1994 (59 FR 29908-31), establish scientific and technical gnidelines for federal drug-testing programs, as well as standards for certification of laboratories engaged in urine drug-testing for federal agencies. A second revision to the Mandatory Guidelines regarding opiate testing was published in the Federal Register on
September 30, 1997 (62 FR 51118-19). Upon information and belief, draft Guidelines are in the process ofbeing finalized.

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ofthe Hair Test. 38. Although the FDA has approved other methods of testing for the presence of
illegal drugs (using blood and urine), upon information and belief, the FDA has not approved the procedures used by the defendants and Psychemedics to test hair samples for the presence of illegal drugs.
.. 39. Forensic toxicologists have reported on the inability of repeated wash procedures
to remove completely extemal cocaine contamination from the dark, coarse hair of AfricanAmericans. Upon information and belief, the Society of Forensic Toxicologists considers the testing of hair samples for the presence of illegal drugs to be too unreliable to be used in making individual employment decisions.
40. Upon information and belief, the defendants had knowledge, at least as early as 2002, that the reliability of the procedures they bad chosen to use for the Hair Test was questionable in view of the fact that an increasing number of long-term officers of color were testing positive for cocaine on the Hair Te5t, even though they had excellent service records; no history of illegal drug nse; and denied using illegal drugs. The defendants nevertheless continue to use the Hair Test; administered in the same way; performed and interpreted by the same laboratory; and with the same disparate, adverse, and discriminatory consequences for offic~ and applicants of color in the terms and conditions oftheir employment.
41. The Hair Test is rife with flaws. For example, the defendants have failed to ensure that personnel responsible for collecting the hair samples and transmitting them to Psychemedics are sufficiently trained to follow the proeedures necessary to ensure the integrity of the hair samples used in the Hair Test and that the hair samples provided to Psychemedics are ofsufficient length and quantity to comply with the testing protocol.
42. The Hair Test is unreliable, imprecise, and arbitrary. Scientific studies have demonstrated flaws in the procedures used to test hair samples for the presence of illegal drugs and the hair drug test's inherent bias against people of color-- i.e., the propensity of the test to yield false positives on hair samples taken from persons of color. Upon information and belief,

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results obtained by laboratory analysis of the same hair sample can vary by more than 40 percent.

43. Upon information and belief, the defendants are aware of these studies but refuse to take remedial steps. Although a disproportionate number of officers and applicants of color are being adversely affected by the Hair Test in the terms and conditions of their employment,

the defendants will not suspenp or modify its use in making employment decisions. 44. The BPD bas denied "that race, apecifically African-American, is a factor in drug
testing results and can cause a positive drug test result [on the Hair Test]." The BPD also refuses to acknowledge that hair samples used in the Hair Test may be contaminated from external exposure, as might occur, for example, during the performance of job duties; as a resul! of unsanitary collection, transmission, preparation, or testing procedures; or because of errors in the chain of cnstody.
45. The defendants afford no meaningful opportunity for an officer or applicant who allegedly tests positive on the Hair Test to prove his or her ionocence with respect to alleged

illegal drug nse. Despite scientific evidence demonstrating the unreliability of procedures used to test hair samples for the presence of illegal drugs and the hair drug test's inherent bias agsinst people of color, the BPD refuses to consider independent test results that refute the Hair Test results and to give sufficient credence and weight to the affected officer's or applicant's record, even when the record strongly negates the possibility of illegal drug use.

46. The Hair Test used by the defendants is discriminatory in its nature and its effect and bas had, and continues to have, a disparate, adverse, and discriminatory impact on police officers and applicants of color. Because of this discrimination, a hostile work environment for people of color has been created by and within the BPD.
47. Upon information and belief, alternative testing methods and procedures exist that would have less disparate, adverse, and discriminatory impact on officers and applicants of color in the terms and conditions of their employment, but the defendants have failed and refused to utilize them.

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48. As a consequence of the defendants' policies, customs, practices, and conduct with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test, the plaintiffs have been stripped of their livelihoods; suffered the loss of compensation, benefits, seniority, and opportunities for employment and promotion; seen their reputations and careers destroyed; and endured humiliation, loss of standing in the community, and extreme emotional distress.
. -' Count I
Violation of 42 U.S.C. § 2000e, et seq. and Mass. Gen. Laws. ch. 151B
(Discrimination on the Basis of Race) 49. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 50. Plaintiffs are members of a class protected by 42 U.S.C. § 2000e and Mass. Gen.
Laws. ch.. 151B and are qualified for employment by the BPD.
51. As alleged above, the plaintiffs have satisfied the necessary administrative prerequisites to the filing of a civil action asserting claims arising under 42 U.S.C. § 2000e and Mass. Gen. Laws. ch. 151B.
52. As alleged above, the defendants have failed and refused to (a) give any meaningful consideration to independent test results that show the affected officer or applicant to be drug-free at the time the Hair Test yielded a false positive resnlt or to service records that show no indication of illegal drug use; and (b) utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicants of color.
53. As alleged above, the defendants' policies, customs, practices, and conduct (including intentional conduct) with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions constitute unlawful discrimination on the basis of race against the plaintiffs, in violation of 42 U.S.C. § 2000e and Mass. Gen. Laws. ch. 151B and also constitute part of the defendants' pattern and practice of discrimination on the basis of race, including but not limited to the following: (a) the

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use of a mandatory drug test (the Haii Test) that discriminates against employees and applicants on the basis of race; (b) the creation of a hostile work enviromnent for people of color; (c) the disparate, adverse, and discriminatory alteration of the tenns and conditions of the plaintiffs' employment; (d) the harassment of the plaintiffs based on race; and (e) the failure and refusal to utilize .alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicants of color•in the terms and conditions of their employment.
54. A5 alleged above, the plaintiffs have suffered and continue to suffer injuries and
a damages as result of the defendants' policies, customs, practices and conduct, for which the
defendants are liable under the provisions of 42 U.S.C. § 2000e and Mass. Gen. Laws. ~h. 151B in an amount to be proven at trial, including compensatory and punitive damages, back pay with interest, front pay, sick leave, disability leave, vacation leave, reimbursement for all lost compensation, seniority, Social Security, pre-judgment interest, and all other entitlements and emoluments provided by 42 U.S.C. § 2000e and Mass. Gen. Laws. ch. 151B.
Countll Violation of 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 93, § 103
((Discrimination on the Basis of Race) 55. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 56. Plaintiffs are members of a class protected by 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 93, § 103. 57. At all relevant times, the defendants acted under color of state law with respect to" their policies, customs, practices, and conduct (including intentional conduct} concerning the implementation, execution, administration, supervision, related training, and use ofthe Hair Test in making employment decisions. 58. As alleged above, the defendants have a policy, custom, and practice of failing and refusing to (a) give any meaningful consideration to independent test results that show the affected officer or applicant to be drug-free at the time the Hair Test yielded a false positive

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result or to service records that show no indication of illegal drug use; and (b) utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicll!lts of color.
. 59. As alleged above, the defendants' policies, customs, practices, and conduct (including intentional conduct) constitute unlawful discrimination on the basis of race against the
plaintiffs with respect to \a) the making, performance, modification, and termination of
contracts; (b) the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship;· and (c) the enjoyment of the full and equal benefit of all laws as enjoyed by white citizens, as guaranteed by 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 93, § 103.
60. As alleged above, the defendants' policies, customs, practices, and conduct (including intentional conduct) has, among other things, damaged the good names, reputations, honor, and integrity ofthe plaintiffs; lowered the plaintiffs' standing in the community; deprived the plaintiffs' of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
61. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' policies, customs, practices, and conduct, for which th~
defendants are liable under the provisions of 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 93, § 103 in an amount to be proven at trial, including compensatory and punitive damages in the
full amount permitted by law.
Conntlll Violation of 42 U.S.C. § 1983 and the Fourteenth Amendment Equal Protection Clause
(Discrimination on the Basis of Race) 62. Plaintiffs repeat and re-allege the facts contained in the furegoing paragraphs. 63. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, and practices, and conduct (including intentional conduct) concerning the implementation, execution, administration, supervision, related training, and nse of the Hair Test

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in making employment decisions.
64. As alleged above, the defendants have a policy, custom, and practice of failing and refusing to (a) give any meaningful consideration to independent test results that show the affected officer or applicant to be drug-free at the time the Hair Test yielded a false positive result .or to service records that show no indication of illegal drug use; and (b) utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicants of color in the terms and conditions of their employment, as compared with other, similarly situated BPD employees and applicants.
65. As alleged above, the defendants' policies, customs, practices, and; conduct concerning the implementation, execution, administration, supervision, related t:rai:Uing, and use of the Hair Test in making employment decisions constitutes intentional discrimination on the basis of race against the plaintiffs, in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment Equal Protection Clause.
66. As alleged above, the defendants' policies, customs, practices, and conduct have, among other things, damaged the good nsmes, reputations, honor, and integrity of the plaintiffs; lowered the plaintiffS' standing in the community; deprived the plaintiffs' of employment and
'
related compensation and benefits; and foreclosed employment opportunities for the plaintiffs. 67. As alleged above, the plaintiffs have suffered and continue to suffer injuries and
damages as a result of the defendants' policies, customs, practices, and conduct, for which the defendants are liable imder the provisions of 42 U.S.C. § 1983 in an amount to be proven at trial.
Count IV Violation of 42 U.S.C. § 1983 and the Fourteenth Amendment
(Due Process) 68. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 69. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, and practices concerning the implementation, execution, administration,

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supervision, related training, and use ofthe Hair Test in making employment decisions. 70. As alleged above, the Hair Test used by the defendants to screen BPD officers
and applicants for. illegal drug use is, flawed, unreliable, imprecise, arbitrary, and inherently biased against people ofcolor -- i.e., the Hair Test has a propensity to yield false positives on hair samples taken from persons of color.
71. As alleged above, the defendants have a policy, custom, and practice of failing and refusing to (a) give any l'heaningful consideration to independent test results that show the affected officer or applicant to be drug-free at the time the Hair Test yielded a false positive result or to service records that show no indication of illegal drug use; and (b) utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and aPPlicants of color in the terms and conditions oftheir employment.
72. As alleged above, the defendants' policies, customs, practices, and conduct are arbitrary and capricious in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment Due Process Clause.
73. As alleged above, the defendants' policies, customs, practices, and conduct have deprived the plaintiffs of a fair opportunity to have evidence considered that indicates that they, were drug free at the time of the Hair Test that resulted in the defendants' adverse employment decisions against them, in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment Due Process Clause.
74. As alleged above, the defendants' policies, customs, practices, and conduct have, among other things, damaged the good names, reputations, honor, and integrity of the plaintiffs; lowered the plaintiffs' standing in the community; deprived the plaintiffs' of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
75. As alleged above, the plaintiffs have suffered and continue to suffer injuries and dsmages as a result of the defendants' policies, customs, practices, and conduct, for which the defendants are liable under the provisions of 42 U.S.C. § 1983 in an amount to be proven at trial.

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CountY Violation of 42 U.S.C. § 1983 (Failure to Train and Supervise) 76. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 77. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, and practices concerning the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions.
. 78. At all relevant' times, the defendants were and are responsible for, among other
things, the training and supervision of personnel charged with administering and performing the procedures involved in the Hair Test and were and are obligated by law to ensure that the implementation, execution, administration, supervision, related trainins, and use of theJ~ Test in making employment decisions (including the defendants' policies, customs, and practices concerning the foregoing) are consistent with the Constitution and laws of the United States.
79. As alleged above, the defendants' policies, customs, practices, and conduct have deprived the plaintiffs of rights guaranteed by 42 U.S.C. § 1983, 42 U.S.C. § 1981, 42 U.S.C. § 2000e, U.S.C. § 12112, and the Fourteenth Amendment to the United States Constitution, and the defendants have acted with deliberate indifference to the defendants' deprivations of the plaintiffs' constitutional and statutory rights.
80. As alleged above, the defendants' policies, customs, practices, and conduct have, among other things, damaged the good names, reputations, honor, and integrity of the plaintiffS; lowered the plaintiffs' standing in the community; deprived the plaintiffS' of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
81. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' policies, customs, practices, and conduct, for which the defendants are liable under the provisions of 42 U.S.C. § 1983 in an amount to be proven at trial.

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Count VI Violation of 42 U.S.C. § 12101, et seq., Mass. Gen. Laws ch. 151B
Mass. Gen. Laws ch. 93, § 103, and Article of Amendment 114
to the Massachusetts Deelaration of Rights (Disability Discrimination)
82. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. · 83. Plaintiffs are members of a class protected by 42 U.S.C. §§ 12102(2), 12111(8), 12112, and 12114; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103, and Article of
•' Amendment 114 to the Massachusetts Declaration of Rights, and able to perform the essential functions of their jobs without accommodation.
84. As a consequence of the plaintiffs' allegedly positive Hair Test results, the defendants falsely and erroneously regarded the plaintiffs as having a disability that substantially limited a major life activity, even though the plaintiffs had no such disability and were able to perform the essential functions of their jobs without accommodation.
85. As a consequence of the plaintiffs' allegedly positive Hair Test results, the defendants treated the plaintiffs in a disparate, adverse, and discriminatory manner -- as compared with other BPD employees and applicants for employment -- on the basis of the defendants' false and erroneous perception that the plaintiffs had a disability that substantially limited a major life activity, even though the plaintiffs had no such disability.
86. As a result of the Hair Test, the defendants terminated or denied employment to the plaintiffs on the basis of the defendants' false and erroneous perception of a disability, even though the plaintiffs had no such disability.
87. As alleged above, the defendants' conduct has deprived the plaintiffs of their right to be free from discrimination on the basis of disability as guaranteed by 42 U.S.C. § 12112, Mass. Gen. Laws ch. l5IB, Mass. Gen. Laws ch. 93, § 103, and Article of Amendment 114 to the Massachusetts Declaration ofRights.
88. As alleged above, the defendants' conduct has, among other things, (a) interfered with the plaintiffs' contractual rights; (b) deprived the plaintiffs of their rights with respect to the

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enjoyment of the full and equal benefit of all laws as enjoyed by white citizens; (c) damaged the good names, reputations, honor, and integrity of the plaintiffs; (d) lowered the plaintiffs' standing in the community; (e) deprived the plaintiffs' of employment and related compensation and benefits; and (f) foreclosed employment opportunities for the plaintiffs.
89. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' conduct, for which the defendants are liable under the provisions of 42 U.S:C. § 12fl2, Mass. Gen. Laws ch. 151B, Mass. Gen. Laws ch. 93, § 103, and Article of Amendment 114 to the Massachusetts Declaration of Rights in an amount to be proven at trial, including compensatory and punitive damages to the full extent permitted by law.
Count VII Violation of Mass. Gen. Laws. ch. 12, §§ llH, 111 and Wghts Guaranteed by Massachusetts and Federal Law
90. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 91. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, and practices concerning the implementation, execution, administration, supervision, related training, and nse ofthe Hair Test in making employment decisions. 92. As alleged above, the defendants' policies, customs, practices, and conduct have deprived the plaintiffs of rights guaranteed by Mass. Gen. Laws. ch. 12, §§ llH, 11!, 42 U.S.C: § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103; and Articles 1, 10, 11, and 12 of, and Article ofAmendment 114 to, the Massachusetts Declaration of Rights. 93. As alleged above, the defendants have used or attempted to use threats, intimidation, and coercion in interfering with, attempting to interfere with, and depriving the plaintiffs of rights guaranteed by Mass. Gen. Laws ch. 12, §§ 11H and 11! ; 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103; and

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Articles 1, 10, 11, and 12 of, and Article ofAmendment 114 to, the Massachusetts Declaration of Rights.
94. As alleged above, the defendants' policies, customs, practices, and cdnduct have, among other things, damaged the good nan;tes, reputations, honor, and integrity of the plaintiffs; lowered the plaintiffs' standing in the community; deprived the plaintiffs' of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
95. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' conduct in violation of Mass. Gen. Laws ch. 12, §§ llH and lli ; 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12111; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151)3; Mass. Gen. Laws ch. 93, § 103; and Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration of Rights, for which the defendants are liable under the provisions of Mass. Gen. Laws. ch. 12, §§ llH and Ill in an amount to be proven at trial.
Count VIII Declaratory Judgment, Mass. Gen. Laws ch. 231A

96. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 97. As alleged above, there is an actual controversy between the plaintiffS and the defendants concerning the lawfulness of the defendants' policies, customs, practices, and conduct with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions.
98. Pursuant to Mass. Gen. Laws ch. 231A, § 1, the plaintiffs are entitled to a
declaratory judgment stating that the defendants have violated rights guaranteed them by 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103; Mass. Gen. Laws ch. 12, §§ llH and lli; Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration of Rights.
99. The plaintiffs also are entitled to further relief as may be warranted under Mass.

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Gen. Laws ch. 231A, § 5.

Count IX Permanent Injunction

100. Plaintiffs repeat and re-alleg_e the facts contained in the foregoing paragraphs.

101. The defendants' policies, customs, practices, and conduct with respect to the

\

implementation, execution, administration, supervision, related training, and use of the Hair Test

in making employment decisions is in violation of rights guaranteed to the plaintiffs by 42

U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12112; the Fourteenth

Amendmentto the United States Constitution; Mass. Gen. Laws ch. !SIB; Mass. Gen. Laws ch.

93, § 103; Mass. Gen. Laws ch. 12, §§ llH and lli; Articles 1, 10, 11, and 12 of, and Article of

Amendment 114 to, the Massachusetts Declaration of Rights.

102. Absent the granting of pennanent injunctive relief, enjoining the defendants'

unlawful policies, customs, practices, and conduct, the plaintiffs will continue to be irreparably

hsrmed by said unlawful policies, customs, practices, and conduct, for which there is no

adequate remedy at law.

PLAINTIFFS DEMAND A JURY TRIAL ON ALL ISSUES SO TRIABLE

WHEREFORE, plaintiffs pray that this Court:
(a) enter judgment against the defendants and in favor of the plaintiffs on all counts of the Complaint;
(b) enter judgment against the defendants declaring that the policies, customs, practices, and conduct set forth in this Complaint are in violation of 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. §§ 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. !SIB; Mass. Gen. Laws ch. 93, § 103; Mass. Gen. Laws ch. 12, §§ llH and Ill; Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration o f Rights;
(c) issue a permanent injunction enjoining the defendants from further violating the plaintiffs' rights asserted in this Complaint;

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(d) order the defendants to make the plaintiffs whole by providing appropriate back pay with interest, front pay, sick leave, disability leave, vacation leave and reimbursement for all lost compensation and benefits, Social Security, prejudgment interest, seniority, and all other entitlements and emoluments in an amount to be proven at trial and to take other affirmative steps immediately to eliminate the effects of the discriminatory and otherwise unlawful policies, customs, practices, and conduct set forth in this Complaint;
-(e) order the defendants immediately to (i) reinstate the plaintiffs, with seniority and with all reqaired adequate protective measures in place, to the positions that they would now occupy but for the defendants' unconstitutional and otherwise unlawful policies, customs, practices, and conduct; and (ii) adjust the plaintiffs' wage rate, salary, bonuses, seniority, and benefits to the levels that they would enjoy but for said unconstitutional and otherwise unlawful policies, customs,
. practices, and conduct;
(l) award the plaintiffs compensatory and punitive damages to the full extent permitted by law;
(g) award the plaintiffs reasonable attorneys' fees, costs, and expenses incurred in pursuing this action to the full extent permitted by law;
(h) retain jurisdiction over this action until the defendants have fully complied with the orders of this Court and reqaire the defendants to file such reports as is necessary to supervise such cOmpliance; and
(i) grant such other, further reliefthat the Court deems just and proper.

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Respectfully submitted,
Ronnie Jones, Richard Beckers, Walter Washington, William Earl Bridgeforth, Shawn N. Harris, Eugene Wade George C. Downing, Jr., Clararise Bristow, and. the Massachusetts Association of Minority Law Enforcement Officers,
By their attorneys,

Nadine Cohen, BBO # 090040 Lawyers' Committee for Civil Rights Under Law ofthe Boston Bar Association 294 Washington Street, Suite 443 Boston, Massachusetts 02108 (617) 482-1145
Maricia Woodham, BBO # 600886 SABEL & SABEL, P.C.
Hillwood Office Center 2800 Zelda Road; Ste. 100-5 Montgomery, AL 36106 (334) 271-2770

Paul Robertson, BBO # 562421 Rheba Rutkowski, BBO # 632799 Rachael Splaine Rollins, BBO # 641972 BINGHAM McCUTCHEN LLP, .
150 Federal Street Boston, MA 02110 (617) 951-8000

Dated: July 26, 2005

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 Case 1:05-cv-11832-GAO Document 191 Filed 09/28/12 Page 1 of 11
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 05-11832-GAO RONNIE JONES, ET AL., Plaintiffs, v. CITY OF BOSTON, ET AL., Defendants.
OPINION AND ORDER September 28, 2012
O’TOOLE, D.J. This case arises from the use by the Boston Police Department (“BPD”) of hair tests to
detect possible drug use among its officers. The plaintiffs here all failed the hair test and consequently suffered adverse employment actions. They have brought a number of claims against the BPD and its Commissioner. The parties have filed cross-motions, the defendants for summary judgment, the plaintiffs for partial summary judgment. I resolve the motions as follows.
A. Preemption (Counts I, II, and VI-IX) The defendants have withdrawn so much of their motion for summary judgment as seeks dismissal of the plaintiffs’ state law claims as preempted by the Labor Management Relations Act. B. Disparate Impact Discrimination (Count I) The plaintiffs contend that the BPD’s use of a hair test to detect evidence of illegal drug use by its officers has a disparate impact on African-American officers and therefore constitutes an unlawful employment practice in violation of 42 U.S.C. § 2000e-2 and Mass. Gen. Laws ch.

Case 1:05-cv-11832-GAO Document 191 Filed 09/28/12 Page 2 of 11
151B. The plaintiffs bear an initial burden of making a prima facie showing that the test in fact “causes a disparate impact on the basis of race.” § 2000e-2(k)(1)(A)(i).1 Here the plaintiffs rely on statistical evidence from a proposed expert witness to establish the prima facie showing. The defendants argue that the plaintiffs’ statistical evidence is insufficient by itself to establish a prima facie case of disparate impact.
The term “disparate impact” is not a statutorily defined term. See id. § 2000e, passim. The concept itself emerged from the recognition that employment practices that were “fair in form” might nonetheless be “discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). “[T]he necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988).
Statistical evidence can help identify the existence and extent of a disparity. For the plaintiffs to meet the burden of establishing a prima facie case, the statistical disparities they are able to demonstrate “must be sufficiently substantial that they raise an inference” that the challenged employment practice causes a disparate impact on an identified racial group. Id. at 995. “The Supreme Court has said that no single test controls in measuring disparate impact.” Langlois v. Abington Hous. Auth., 207 F.3d 43, 50 (1st Cir. 2000) (citing Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 995-96 n.3 (1988) (plurality) (“[W]e believe that such a case-bycase approach properly reflects our recognition that statistics ‘come in infinite variety and . . .
1 “The legal standards for establishing a violation of Mass. Gen. Laws ch. 151B, § 4 are the same as those for establishing a Title VII claim.” DeRosa v. Mass. Bay Commuter Rail Co., 694 F. Supp. 2d 87, 92 n.2 (D. Mass. 2010).
2

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their usefulness depends on all of the surrounding facts and circumstances.’”2) (citations omitted)). Rather, “[t]he utility of statistical evidence ‘depends on all of the surrounding facts and circumstances.’” EEOC v. Steamship Clerks Union, 48 F.3d 594, 604-605 (1st Cir. 1995) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977)).
As guidance, the Equal Employment Opportunity Commission has suggested what is known as the “Four-Fifths Rule”:
“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.” 29 C.F.R. § 1607.4(D). The First Circuit has “approved use of the four-fifths rule as a pertinent benchmark in the employment context.” Id. (citing Boston Police Superior Officers Fed’n v. City of Boston, 147 F.3d 13, 21 (1st Cir. 1998)). This benchmark implicitly recognizes that in the real world some differences may inevitably arise and counsels that adverse impact should be found only when the difference is substantial. The Four-Fifths Rule is not literally a legal rule but a “rule of thumb.” In this case, over the range of eight years in which the hair test was required, it is not disputed that white officers passed the test at rates of 99% to 100%, and African Americans passed the test at rates between 97% and 99%. Thus, the passing rate for African Americans was at least 97% of the passing rate for whites. Under the Four-Fifths Rule, the question is not even close; the EEOC would not regard the results to amount to adverse impact. Cf. Smith v. Xerox Co., 196 F.3d 358, 369 (2d Cir. 1999) (overruled on other grounds) (“In some workforces, a disparate impact might well be actionable if older workers were retained at 88.79% of the rate
2 Although the Supreme Court’s statement is preceded by the phrase, “At least at this stage of the law’s development,” the First Circuit and the District of Massachusetts, in more recent cases, have adopted the Court’s holistic case-by-case approach.
3

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for younger workers, but not if the comparison were 96.69%, especially considering the finding of statistical significance.”).
The plaintiffs rely on evidence that differences in the rates at which African Americans failed, rather than passed the hair test, were statistically significant to the extent of between two to four standard deviations. Focusing on failure rates, rather than passing rates, eludes the point of the Four-Fifths Rule, where the EEOC addressed “selection” rates rather than “exclusion” rates. More importantly, the plaintiffs try to give statistical significance a significance it does not have. Statistical significance assesses the question of causation. That is, it assesses the likelihood that an outcome is the result of an identified factor rather than the product of randomness. It is not a measure of impact. By contrast, the Four-Fifths Rule is intended as a measure of impact. To accept the plaintiffs’ argument based on statistical significance in failure rates alone, the FourFifths Rule must be wholly ignored, because if it is considered, a finding of actionable disparate impact is impossible.
The plaintiffs put misplaced reliance primarily on two cases, Castaneda v. Partida, 430 U.S. 482 (1977), and Ricci v. DeStefano, 557 U.S. 557 (2009). In Castaneda, the Supreme Court noted in a footnote that “as a general rule for such large samples3 . . . 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 would be suspect to a social scientist.” Id. at 496 n.17. The passage does not mean what the plaintiffs try to make of it. The Court was merely acknowledging the general convention used by social scientists. In its holding the Court then affirmed the finding of a prima facie case of discrimination based on evidence of twelve standard deviations, not two or three.
3 870 people total over an eleven-year period, whereas in this case, the defendants administered over 15,000 tests over eight years.
4

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The plaintiffs cite Ricci as stating that a prima facie case is “essentially a threshold showing of a significant statistical disparity and nothing more.” Ricci, 557 U.S. at 587. Ironically, the Supreme Court never mentioned statistical significance anywhere in its opinion but instead pointed to the four-fifths rule to show that where the impact ratio was approximately 50%, the plaintiffs undisputedly established a prima facie case. See id. at 586-87. Thus, in discussing “statistical disparity” (emphasis added), id. at 586, the Court was addressing the degree of disparate impact, rather than the technical term “statistical significance.” In sum, the plaintiffs have no authority for the proposition that a showing of two or more standard deviations in failure rates alone is sufficient to establish a prima facie case.
This is especially true here, where the sample size is so large, because statistical significance is highly sensitive to sample size. See RAMONA L. PAETZOLD & STEVEN L. WILLBORN, THE STATISTICS OF DISCRIMINATION: USING STATISTICAL EVIDENCE IN DISCRIMINATION CASES § 4:13 (2011) (“When the sample size is large enough, extremely small disparities can appear statistically significant. Thus if an employer has engaged in a large enough number of hires, disparities between actual and expected numbers of women or other minorities hired can appear statistically significant even when quite small in absolute terms.”). Here, the sample size is quite large, ranging from approximately 1600 to 2000 tests each year.4
In addition, the standard deviations here are relatively modest – plaintiffs’ expert’s calculations reflect 0.33 to 3.99 standard deviations.5 Various courts have found that a prima
4Cf. Apsley v. Boeing Co., 722 F. Supp. 2d 1218, 1239 (D. Kan. 2010) (“In certain instances, a large number of standard deviations simply will not be enough. This case presents one of those instances. It is important to recognize that here the Court is looking at thousands of hiring decisions, not hundreds. Due to this large sample, de minimus disparities may become statistically significant.”) (emphasis added)). 5 These calculations compare African-American officers to white officers, as well as minority officers to non-minority officers. (Reply Report of Sharon Kelly, Ph.D. Tables R-1, R-2 (dkt. no. 177-114.))
5

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facie case had not been established where there were comparable standard deviations. See, e.g., Waisome v. Port Auth. of N.Y. and N.J., 948 F.2d 1370 (2d Cir. 1991) (2.68 standard deviations); Apsley v. Boeing Co., 722 F. Supp. 2d 1218 (D. Kan. 2010) (4 to greater than 5 standard deviations).
For these reasons, the defendants are correct that the plaintiffs have not satisfied the first step in making out a prima facie case. Accepting the plaintiffs’ statistical evidence as reliable, it is nonetheless insufficient in itself to show the necessary disparate impact to support the claim. And its insufficiency is dramatically highlighted by the rest of the pertinent evidence. No reasonable jury could find that the plaintiffs have established a prima facie case of disparate impact.
C. Discrimination on the Basis of Race (Count II) The plaintiffs also bring a claim of discrimination under 42 U.S.C. § 1981. This claim, however, runs counter to Jett v. Dallas Independent School District, which held that that § 1983 provided the exclusive federal remedy against state actors for a violation of rights declared in § 1981. 491 U.S. 701, 731-33 (1989). That is, § 1981 was merely one law among many capable of giving rise to a § 1983 claim. Contrary to the plaintiffs’ suggestions, the Civil Rights Act of 1991 did not supersede Jett. Indeed, the legislative history nowhere purported to supersede Jett but targeted matters entirely different. See H.R. Rep. No. 40(I) (1991), reprinted in 1991 U.S.C.C.A.N. 549; 137 Cong. Rec. S15472-01 (daily ed. Oct. 30, 1991). Furthermore, § 1981 lacks the language regarding causation that allows an individual under § 1983 to bring an action against a municipality. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Philippeaux v. N. Cent. Bronx Hosp., 871 F. Supp. 640, 655 (S.D.N.Y. 1994). The language,
6

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precedent, and history of § 1981 thus all indicate that the plaintiffs cannot bring here their independent cause of action under that statute.
As for the plaintiffs’ state-law claim, their claim under Chapter 151B bars their claim under Chapter 93, section 103. See Agin v. Fed. White Cement, Inc., 632 N.E.2d 1197, 1199 (Mass. 1994) (“[S]hould a judge decide that G.L. c. 151B is or was available to the plaintiff, the plaintiff would have no viable c. 93, § 103, claim under the teaching of Charland.”).
D. 42 U.S.C. § 1983: Equal Protection (Count III) “The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239 (1976). Accordingly, “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). In some circumstances, a facially neutral law “may affect a greater proportion of one race than of another,” and “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” Davis, 426 U.S. at 242. In the present case, the raw number of African Americans who actually failed the hair test was exceedingly small. It is especially significant, as discussed above, that the overall pass rate of African-American officers was between 97% and 99%. The pass rate for African Americans was at least 97% of the pass rate for white officers. No discriminatory intent is fairly inferable from these small variances. The plaintiffs have presented no additional evidence that would permit a reasonable jury to find an intent to discriminate in the present case. The question is not a close one. See Frazier v. Garrison, I.S.D., 980 F.2d 1514, 1526 (5th Cir. 1993) (“We have no
7

Case 1:05-cv-11832-GAO Document 191 Filed 09/28/12 Page 8 of 11
basis for concluding that an exam with an overall pass rate for African-Americans of 95.58% . . . is evidence of intent to discriminate.”).
E. 42 U.S.C. § 1983: Due Process (Count IV) The plaintiffs argue that there are disputed issues of material fact as to whether they have established a valid procedural due process claim here. In procedural due process claims, post-deprivation remedies alone can provide sufficient procedural remedies to satisfy the requirements of due process. See Cronin v. Town of Amesbury, 81 F.3d 257, 260 (1st Cir. 1996). The First Circuit has held that the Civil Service Law, Mass. Gen. Laws ch. 31, §§ 41-44, can provide sufficient due process by providing, among other things, the opportunity to file a grievance, to be given a hearing by a member of the Civil Service Commission or a disinterested person, and to have the possibility of reinstatement without loss of compensation. Id. “Although extraordinarily long delays may render a postdeprivation remedy inadequate,” id., courts have found such remedies adequate even after years of delay, Decker v. Hillsborough Cnty. Attorney’s Office, 845 F.2d 17, 22 (1st Cir. 1988). Adequate post-deprivation remedies were (and are) available to the plaintiffs here. Besides the standard Civil Service protections, the defendants’ own testing procedures had protections in addition. For example, positive drug tests had to be reviewed by a medical review officer before the test would be forwarded to the Office of Internal Investigation. Furthermore, the plaintiffs were granted disciplinary hearings where they could present evidence to challenge the results of their drug tests and even had the opportunity to introduce evidence of other drug tests.6
6 It was, of course, no violation of due process to insist that the plaintiffs establish a valid chain of custody to have their independent drug tests admitted and considered as evidence in their hearings. See Fed. R. Evid. 901(a).
8

Case 1:05-cv-11832-GAO Document 191 Filed 09/28/12 Page 9 of 11
In sum, the officers here were the beneficiaries of significant protections of their due process rights both pre- and post-deprivation. In light of these layers of protections, one cannot reasonably conclude that the plaintiffs were deprived of due process here.
F. 42 U.S.C. § 1983: Failure to Train and Supervise (Count V) The plaintiffs have brought a claim for failure to supervise and train, claiming that the defendants inadequately supervised the administration of the hair tests. This theory, like the other theory in Count V that the defendants intentionally discriminated against the plaintiffs, seems at odds with their primary theory that the test, even when competently administered, had a disparate impact on African-American test subjects. In any event, in the absence of a showing of intentional discrimination, as discussed above, there can be no supervisory liability. See Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 407 (1997). Moreover, the record lacks any evidentiary basis for concluding that testing sloppiness that could have been corrected by better supervision and training would have had a greater impact on one ethnic group than another. The plaintiffs’ § 1983 claim for failure to train and supervise fails. G. Disability Discrimination (Count VI) The plaintiffs bring claims for disability discrimination under state and federal laws protecting disabled individuals against discrimination. The relevant statutes, however, specifically exclude current drug use as a disability or handicap entitled to statutory protection. See 42 U.S.C. § 12114(a); Mass. Gen. Laws ch. 151B, §1(17); see also Mammone v. President & Fellows of Harvard Coll., 847 N.E.2d 276, 291-92 (Mass. 2006). That is precisely what the hair test indicates: whether someone used drugs recently enough that it is still in that person’s hair. The plaintiffs were not targeted for testing on the basis of a perception of disability such as drug addiction. They not “targeted” for testing any more than any other officer. Similarly, they were
9

Case 1:05-cv-11832-GAO Document 191 Filed 09/28/12 Page 10 of 11
not targeted for discipline because of a perception that they were disabled by addiction, but because they had flunked the test. The plaintiffs are not entitled to relief on this Count.
H. Massachusetts Civil Rights Act (Count VII) The First Circuit has held that “under Massachusetts law a municipality cannot be sued under the [Massachusetts Civil Rights Act].” Kelley v. LaForce, 288 F.3d 1, 11 n.9 (1st Cir. 2002) (citing Howcroft v. City of Peabody, 747 N.E.2d 729, 744 (Mass. App. Ct. 2001) (concluding that a municipality is not a “person” under the MCRA)). Since that time, the Supreme Judicial Court has cast doubt on the issue. See Am. Lithuanian Naturalization Club, Athol, Mass., Inc. v. Bd. of Health of Athol, 844 N.E.2d 231, 243 (Mass. 2006) (“It is not resolved whether the Civil Rights Act applies to municipalities.”). Even if the defendants could be sued under the Massachusetts Civil Rights Act, the Supreme Judicial Court has held that “universal drug testing program[s]” do not constitute coercion for purposes of the Massachusetts Civil Rights Act where such programs involve “indiscriminate, impartially administered testing.” Webster v. Motorola, Inc., 637 N.E.2d 203, 206 (Mass. 1994) (citing Bally v. Northeastern Univ., 532 N.E.2d 49, 52-53 (Mass. 1989)). The hair test was likewise universally and indiscriminately administered. Therefore, the plaintiffs’ claim for relief under the Massachusetts Civil Rights Act must fail. I. Declaratory Judgment (Count VIII) & Permanent Injunction (Count IX) Declaratory judgment and permanent injunction are inappropriate, as the plaintiffs are not entitled to relief on any Count.
10

Case 1:05-cv-11832-GAO Document 191 Filed 09/28/12 Page 11 of 11 J. Conclusion Accordingly, the defendants’ motion for summary judgment (dkt. no. 154) is GRANTED as to all Counts. The plaintiffs’ motion (dkt. no. 160) for partial summary judgment is DENIED. The defendant’s motion (dkt. no. 181) to strike is DENIED. Judgment shall enter in the defendants’ favor under all Counts of the Amended Complaint (dkt. no. 17). It is SO ORDERED.
/s/ George A. O’Toole, Jr. United States District Court
11

 
 Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t1201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 1 ofE4n8try ID: 5821735
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

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t2201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 2 ofE4n8try ID: 5821735
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

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t3201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 3 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t4201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 4 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t5201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 5 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t6201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 6 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t7201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 7 ofE4n8try ID: 5821735
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. -7-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t8201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 8 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t9201 DFaitledFi0le5d/0: 70/51/407/P2a0g1e4 9 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12001 DFialeted F0i5le/0d7: /0154/07P/a2g0e1410 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12101 DFialeted F0i5le/0d7: /0154/07P/a2g0e1411 ofE4n8try ID: 5821735

Year
1999 2000 2001 2002 2003 2004 2005 2006 1999 to 2006

# Tested/# Positive

Black 521/15 537/4 530/3 532/15 529/6 522/4 529/3 522/5 4222/55

White 1491/10 1467/3 1404/3 1375/4 1260/3 1260/4 1289/1 1289/2 10,835/30

Standard Deviation
3.43 1.35 0.81 4.41 2.01 1.92 1.43 1.95 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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12201 DFialeted F0i5le/0d7: /0154/07P/a2g0e1412 ofE4n8try ID: 5821735

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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12301 DFialeted F0i5le/0d7: /0154/07P/a2g0e1413 ofE4n8try ID: 5821735
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 AsianAmerican 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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12401 DFialeted F0i5le/0d7: /0154/07P/a2g0e1414 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12501 DFialeted F0i5le/0d7: /0154/07P/a2g0e1415 ofE4n8try ID: 5821735
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 pvalue of five percent, or 1.96 standard deviations, the threshold
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12601 DFialeted F0i5le/0d7: /0154/07P/a2g0e1416 ofE4n8try ID: 5821735
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 raceneutral . . . ."); 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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12701 DFialeted F0i5le/0d7: /0154/07P/a2g0e1417 ofE4n8try ID: 5821735

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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12801 DFialeted F0i5le/0d7: /0154/07P/a2g0e1418 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t12901 DFialeted F0i5le/0d7: /0154/07P/a2g0e1419 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22001 DFialeted F0i5le/0d7: /0154/07P/a2g0e1420 ofE4n8try ID: 5821735
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
-20-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22101 DFialeted F0i5le/0d7: /0154/07P/a2g0e1421 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22201 DFialeted F0i5le/0d7: /0154/07P/a2g0e1422 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22301 DFialeted F0i5le/0d7: /0154/07P/a2g0e1423 ofE4n8try ID: 5821735
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).
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22401 DFialeted F0i5le/0d7: /0154/07P/a2g0e1424 ofE4n8try ID: 5821735
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).
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22501 DFialeted F0i5le/0d7: /0154/07P/a2g0e1425 ofE4n8try ID: 5821735
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
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22601 DFialeted F0i5le/0d7: /0154/07P/a2g0e1426 ofE4n8try ID: 5821735
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
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22701 DFialeted F0i5le/0d7: /0154/07P/a2g0e1427 ofE4n8try ID: 5821735
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 fourfifths 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 fourfifths 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 fourfifths rule was promulgated).
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22801 DFialeted F0i5le/0d7: /0154/07P/a2g0e1428 ofE4n8try ID: 5821735
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 fourfifths 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
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t22901 DFialeted F0i5le/0d7: /0154/07P/a2g0e1429 ofE4n8try ID: 5821735
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 at 658 n.10, we reject here the defendant's reliance on the fourfifths 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.
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32001 DFialeted F0i5le/0d7: /0154/07P/a2g0e1430 ofE4n8try ID: 5821735
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
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32101 DFialeted F0i5le/0d7: /0154/07P/a2g0e1431 ofE4n8try ID: 5821735
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,
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32201 DFialeted F0i5le/0d7: /0154/07P/a2g0e1432 ofE4n8try ID: 5821735
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.
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32301 DFialeted F0i5le/0d7: /0154/07P/a2g0e1433 ofE4n8try ID: 5821735
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. § 2000e2(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
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32401 DFialeted F0i5le/0d7: /0154/07P/a2g0e1434 ofE4n8try ID: 5821735
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).
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32501 DFialeted F0i5le/0d7: /0154/07P/a2g0e1435 ofE4n8try ID: 5821735
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.
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32601 DFialeted F0i5le/0d7: /0154/07P/a2g0e1436 ofE4n8try ID: 5821735
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.
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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32701 DFialeted F0i5le/0d7: /0154/07P/a2g0e1437 ofE4n8try ID: 5821735
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 constitutionallyprotected 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-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32801 DFialeted F0i5le/0d7: /0154/07P/a2g0e1438 ofE4n8try ID: 5821735
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-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t32901 DFialeted F0i5le/0d7: /0154/07P/a2g0e1439 ofE4n8try ID: 5821735
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-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42001 DFialeted F0i5le/0d7: /0154/07P/a2g0e1440 ofE4n8try ID: 5821735
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 pretermination 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-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42101 DFialeted F0i5le/0d7: /0154/07P/a2g0e1441 ofE4n8try ID: 5821735
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-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42201 DFialeted F0i5le/0d7: /0154/07P/a2g0e1442 ofE4n8try ID: 5821735
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-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42301 DFialeted F0i5le/0d7: /0154/07P/a2g0e1443 ofE4n8try ID: 5821735

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-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42401 DFialeted F0i5le/0d7: /0154/07P/a2g0e1444 ofE4n8try ID: 5821735
§ 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).
-44-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42501 DFialeted F0i5le/0d7: /0154/07P/a2g0e1445 ofE4n8try ID: 5821735
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
-45-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42601 DFialeted F0i5le/0d7: /0154/07P/a2g0e1446 ofE4n8try ID: 5821735
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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Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42701 DFialeted F0i5le/0d7: /0154/07P/a2g0e1447 ofE4n8try ID: 5821735
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
-47-

Case: 12-2280CasDeo1c:u0m5-ecnvt-:1010813126-D68P5W030DocPuamgeen:t42801 DFialeted F0i5le/0d7: /0154/07P/a2g0e1448 ofE4n8try ID: 5821735 shifted in favor of a finally prevailing party under any applicable statute. So ordered.
-48-

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

RONNIE JONES, ET AL., Plaintiffs,
v. CITY OF BOSTON, ET AL.,
Defendants.

CIVIL ACTION NO. 05-11832-DPW

MEMORANDUM AND ORDER August 6, 2015
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.
I. BACKGROUND 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

1

than white ones tested positive for cocaine.l 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

1 A chart, reproduced from the First Circuit's decision, presents the undisputed data from the hair tests during the relevant years:

Year
1999 2000 2001 2002 2003 2004
2005
2006

# Tesled/# P ositive

Black

White

521/15

1491/10

537/4

1467/3

53013

1404/3

53~15

137&'4

529/6
5~4

1260/3 1260/4

529/3

1289/1

5~5

1289/2

Standard Deviation
3.43 1.35 0. 1 4.41 2.01 1.92 1.43 1.95

2 Rule 111 was modified through the CBA in 2007. Unless otherwise specified, Rule 111 refers to the pre-2007 Rule 111.
2

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 safetynet 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 fortyfive-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
3 Plaintiffs challenge the conclusion by Psychemedics that positive hair tests resulted from ingestion. They do not challenge that the tests properly identified cocaine and cocaine byproducts as being present in the hair samples.
3

is particularly likely to arise with individuals having AfricanAmerican 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 remanded, 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,
4

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 §§ 4143. 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,
5

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. 131250-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). II. ANALYSIS
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 Albermarle Paper Co. v. Moody, 422 U.S. 405, 425 (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).
6

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. 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(£). A. Jab Relatedness and Business Necessity
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 Albermarle, 422 U.S.
at 431). 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.
7

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. Albermarle, 422 U.S. at 431.
1. Issue Preclusion4 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 performed from
4 The BPD preliminarily objects to this argument on the ground that the plaintiffs did not file a separate statement of facts pursuant to Local Rule 56.1. Plaintiffs counter that this is not a separate cross-motion for summary judgment, but rather is merely a separate ground for me to deny summary judgment in favor of the BPD or for me spontaneously to grant summary judgment in plaintiffs' favor. The precise characterization of the motion is not particularly helpful here - I merely note that the only facts relevant to a determination of whether issue preclusion applies are those provided in state court documents, of which I take judicial notice.
8

1999-2006 could distinguish positive tests caused by

contamination from those caused by ingestion.

The plaintiffs in the Commission action were ten tenured

black police officers who were discharged after their hair

tested positive for the presence of cocaine. They argued that

the hair drug test alone was not an adequate basis on which to

find "just cause" for termination under Mass. Gen. Laws c. 31

§ 41 ("Except for just cause and except in accordance with the

provisions of this paragraph, a tenured employee shall not be

discharged

.").

While the Commission initially agreed to postpone hearing

the termination appeals while the parties focused instead on

this federal civil rights lawsuit, the Commission decided to go

forward with a hearing after five years had passed and this

matter was still in the discovery stage. The Commission held

eighteen days of evidentiary hearings from October 2010 through

February 2011. The Commission received two hundred and two

exhibits, heard oral testimony from the appellants and expert

witnesses and from BPD personnel. The issue before the

Commission was whether the BPD had met its burden to prove just

cause for termination by a preponderance of the evidence.

The Commission issued a unanimous 132-page decision on

February 28, 2013. The Commission affirmed the BPD's right to

take steps to identify and terminate police officers using

9

illegal drugs, and found that uthe BPD's annual hair testing plan is an appropriate tool to enforce such a policy." Commission Decision at 4. The Commission identified the longstanding debate about how accurately hair tests are able to differentiate between external contamination as opposed to ingestion, the lack of nationally approved standards for hair testing, and inconsistency among laboratory protocols. The Commission concluded that a positive hair drug test result is not conclusive evidence of ingestion because it udoes not provide [] 100% irrefutable evidence of drug ingestion," and therefore it is insufficient on its own to provide just cause for termination. Id. at 4. The Commission then looked to the totality of the evidence and reinstated six of the officers, including five of the plaintiffs in this case.
As noted above, the BPD appealed this decision for review to Suffolk Superior Court, Boston Police Dept. v. Civil Service Comm'n, Nos. 13-1250-A, 13-1256-F. The Superior Court affirmed the Commission Decision, modifying it only to the extent that the reinstated officers were awarded full back-pay and benefits as of the date of the officers' discharge. The BPD has since appealed the Superior Court decision to the Massachusetts Appeals Court, and the appeal is pending, Boston Police Dept. v. Civil Service Commission, No. 2015-P-0330. Plaintiffs now argue that the BPD is precluded from relitigating the issue of the reliability of the
10

hair drug test because such testing has already been found in the MCAD case to be insufficiently reliable.
State agency decisions are entitled to preclusive effect under certain circumstances. u[W]hen a state agency acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." Univ. of Tennessee v. Elliott, 478 U.S. 788 799 (1986). See also B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1302-05 (2015) (reaffirming the capacity of agency decisions to ground issue preclusion in the context of the Lanham Act and a decision of the Trademark Trial and Appeal Board) . Massachusetts issue preclusion principles therefore apply. To preclude a party from relitigating an issue, a court must find that u(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication." Kobrin v. Bd. of Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005) (quoting Tuper v. North Adams Ambulance Serv., Inc., 697 N.E.2d 983 (Mass. 1998)). A judgment may be final and subject to preclusive effect, despite the
11

pendency of an appeal. Currie v. Group Ins. Comm'n, 290 F.3d 1, 16 (1st Cir. 2002) (Woodlock, J. dissenting) (citing O'Brien v. Hanover Ins. Co., 692 N.E.2d 39, 44 (Mass. 1998)). The issue also must have been essential to the earlier judgment. Id.
While the parties disagree about whether each of the elements required for issue preclusion was met in this case, the most significant aspect of this debate concerns whether the issue in the prior matter was identical to the issue in this matter. The plaintiffs concede that the legal standards are different. The question before the Commission was the existence of "just cause," whereas the issue here is business necessity. Plaintiffs urge me to look beyond the conclusions tied to assessment of whether the evidence has met the legal standard, and to focus instead on the factual findings related to the reliability of the hair drug test that underpin that conclusion. The plaintiffs point, for example, to language from the Commission decision, based on review of the scientific evidence before it, that "[t]he present state of hair testing for drugs of abuse . . does not meet the standard of reliability necessary to be routinely used as the sole ground to terminate a tenured public employee in Massachusetts." Commission Decision at 107. The plaintiffs argue that the Commission's evaluation of the science of the hair drug test was done separately from the application of the legal standard to the cases before it, so
12

the question of the hair tests' reliability in the face of a risk of external contamination has been conclusively established.
Issue preclusion can occasionally apply even where the legal standards differ between two proceedings. ~A difference in the legal standards pertaining to two proceedings may defeat the use of collateral estoppel. But this is so only where the difference undermines the rationale of the doctrine." Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 125 F.3d 18, 22 (1st Cir. 1997). The plaintiffs submit that the underlying rationale concerned the reliability of the hair drug tests and that therefore the change in legal standard does not defeat the applicability of issue preclusion.
The legal conclusion at the heart of the Commission Decision and the Superior Court Decision was whether the BPD lacked just cause to terminate the officers based solely on hair tests. Boston Police Dept. v. Civil Service Commission, Nos. 13-1250-A, 13-1256-F, at 1. Factually, the ~primary focus of the hearing before the Commission was on the reliability of the hair testing performed by Psychemedics, particularly its capacity to distinguish between voluntary ingestion and environmental exposure." Id. at 5-6. The Commission identified scientific disagreement about the accuracy of the hair drug
13

test, the lack of uniform national standards, and other factors, ultimately to conclude that hair test results do not "meet the standard of reliability necessary to be routinely used as the sole grounds to terminate a tenured public employee under just cause standards governing civil service employees under Massachusetts law." Id. at 6-7. The standard that the Commission used to determine whether the hair drug test could serve as the sole ground for termination was whether it left any room for doubt. Noting that the positive hair test results were "not necessarily conclusive of ingestion," the Commission and the Superior Court determined that the BPD was required to consider other evidence beyond the hair drug test itself in making a final termination decision.
While the Commission and Superior Court expressed concern that the hair drug tests do "not provide the 100% irrefutable evidence of drug ingestion that the BPD (and the police union) believed it did when the policy permitting such testing was negotiated and implemented," id. at 7, the Superior Court noted that "[t]he commission did not conclude that the hair tests supplied no evidence; its conclusion, rather, was that hair tests alone were not sufficiently reliable to outweigh a credible denial." Id. at 25.
The Commission and Superior Court decisions make clear that the accuracy of the hair drug tests is less than 100%, but
14

neither made a finding of how much less. At one point, the Commission noted that ~potential variations [in instrumentation error] of as much as 20% {or even 5%) are not acceptable when they would be used to make the difference in an employer's decision whether an employee is retained in employment or terminated." Commission Decision at 112. While the Commission did not permit the BPD to rely solely on the hair drug test, it noted that ~[f]or all of its flaws, the BPD hair test has a legitimate place in narrowing down which of its few officers may reasonably be suspected of abusing illicit drugs." Id. at 114. In fact, the Commission used the evidence from the hair drug tests as evidence of drug use in its own conclusions about which of the plaintiffs were properly terminated and which were improperly terminated.
A fair review of the Commission and Superior Court decisions makes clear that the factual conclusions of those decisions fall significantly short of, and even undermine, the conclusions that the plaintiffs seek to have drawn from those decisions. While the prior decisions did find that the hair drug test was not 100% accurate, they also found that it may be used as a significant piece of evidence of drug use and that it was helpful in identifying which officers may be drug users. The Commission's factual findings, while supportive of the conclusions of the Commission and affirmed by the Superior
15

Court, do not support a finding of no business necessity. The specific factual findings made by the Commission cannot be divorced from the legal standard that it applied and interpreted. I have concluded that the issue decided in the Commission proceeding is not identical to the one before me and issue preclusion does not prevent the BPD from relitigating the question whether the hair drug tests are predictive of or significantly correlated with officers' drug use.
2. Summary Judgment on Business Necessity For an employment selection device to be valid, it must be shown that the examination is "predictive of or significantly correlated with important elements of work behavior," Jones, 752 F.3d at 54-55 (quoting Albermarle, 422 U.S. at 431), which in this setting is a drug-free workplace. The First Circuit chose not to reach the business necessity analysis but noted some skepticism that the evidence plaintiffs had adduced would be sufficient to counter the BPD's evidence. The court wrote that plaintiffs "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
16

false positives compared to the size of the police force."5
Jones, 752 F.3d at 54. The court noted, however, that the
burden rests squarely with the BPD to make the business
necessity showing. Id.
a. Evidence Related to Business Necessity
From 1999 to 2006, the BPD conducted 15,057 tests, out of
which eighty-five test results were reported to be positive.
Jones, 752 F.3d at 44-45. Of 4,222 black officers tested during
1999-2006, fifty-five tested positive for cocaine during that
period. Id. It is some portion of these fifty-five tests that
plaintiffs identify as being potential false positives due to a
racially disparate effect. The BPD contends that the number
5 This language from the First Circuit's decision suggests that the proper metric is one comparing the number of alleged false positives to all of the test results. The plaintiffs could, but do not, make the counterargument that the appropriate measure is the number of positive tests, only eighty-five over the period of time at issue here, compared to the number of alleged false positives, a calculation that would lead to a higher error rate. The plaintiffs insist instead that the precise calculation is not dispositive here, rather the sole question concerns the reliability of the test. The question of the proper comparison for purposes of an error rate was not briefed for the First Circuit, but in the absence of a compelling reason to embrace a calculation different from that included in the First Circuit's decision, that calculation is the one that I will follow. The differences in error rates between these two methods of calculation do not ultimately affect my analysis in this case. Once a test passes the threshold of being significantly correlated to important elements of work behavior, the question whether there are tests that could have an even lower error rate is for the second part of analysis, which inquires whether there is a superior alternative practice available.
17

should be lower than fifty-five, because numerous officers during that period signed a rehabilitation agreement and took a 45-day suspension, admitting that they had actually used illicit drugs. The plaintiffs challenge that conclusion, noting that many officers felt they had no choice but to sign the rehabilitation agreement in order to keep their jobs despite maintaining that they did not use illicit drugs. The First Circuit rejected the BPD's effort to use the rehabilitation agreements to shrink the size of the pool of possible false positives, Jones, 752 F.3d at 47, and in the absence of additional evidence bearing on the significance of signing the rehabilitation agreement, I do so as well.
In broad terms, the parties disagree about the extent to which hair drug testing is widely accepted by the scientific community. The plaintiffs note that the federal government has chosen not to use hair drug testing in its workplace testing programs. They also present evidence that despite the federal government's issuance of Proposed Revisions to Mandatory Guidelines for Federal Workplace Drug Testing Programs in 2004, the federal government chose in 2008, after four years of study, not to adopt standards for hair drug testing, noting that usignificant issues have been raised by Federal agencies during the review process which require further examination, and may require additional study and analysis." Plaintiffs note further
18

that the Society of Forensic Toxicologists has not revised its 1992 consensus opinion that ~results of hair analysis alone do not constitute sufficient evidence of drug use for application in the workplace." There are no national standards or national certification programs for hair testing laboratories and no federally-certified laboratories for hair drug testing.
In contrast, defendants point to the fact that Psychemdics has forensic drug testing accreditation for hair drug testing from the College of American Pathologists, and that Psychemedics is one of the few laboratories selected as a reference laboratory by the international professional scientific society dedicated to hair drug testing, the Society of Hair Testing. Defendants note that Psychemedics has received and maintained certification from the Clinical Laboratory Improvement Amendments, a federal government laboratory certification, as well as from numerous states including New York and Florida. There is no evidence in the record that Psychemedics has ever failed any certification or proficiency exam related to hair drug testing.
The plaintiffs' objections to the reliability of hair drug testing focus on the risk of external contamination, not the ability of the test properly to identify the presence of cocaine or cocaine metabolites. It is undisputed that the Psychemedics test is able reliably to detect the presence of cocaine and
19

cocaine metabolites at the cut-off level used by the
Psychemedics test.6 Even the plaintiffs' expert, Dr. Walsh,
testified at his deposition that he has no reason to believe
that the BPD test cannot test accurately and reliably at the
5ng/10 mg cut-off level, although he expressed concern that the
cocaine identified could come from contamination rather than
ingestion.
The parties agree that contamination by cocaine
theoretically could result in a false positive. This is
particularly true for individuals who are exposed to cocaine in their home lives or through their work. 7 There is a greater
likelihood that BPD officers would encounter cocaine in their
daily work than people with most other occupations. The BPD's
position is that Pyschemedics' decontamination procedures are
sufficient to remove the concern about external contamination
and that the Psychemedics hair drug test only identifies
ingested cocaine. Psychemedics' decontamination procedure
includes a 3.75 hour, five-part wash procedure with a fifteen-
6 This is at the initial 5 ng/10 mg test level, not the .02 ng/10 mg safety-net test. 7 The affidavit of plaintiffs' expert Dr. Kidwell mentions that cocaine exposure is not limited to people in direct and obvious contact with the drug, noting for example that studies of currency show an average of 1-10 micrograms of cocaine per bill, with one bill having over 300 micrograms. He does not suggest that this demonstrates that cocaine is easily transferred from money, but that it shows "cocaine is prevalent in the environment."
20

minute wash with isopropyl alcohol and vigorous shaking to remove external contaminants, then three aqueous phosphate buffer washes each lasting a half hour with vigorous shaking, followed by two additional one-hour phosphate buffer washes. The last wash is retained and analyzed, and any drug amount found in the last wash is multiplied by five and deducted from the ultimate results in what Psychemedics contends is a conservative estimate of the drug amounts that may remain on the hair due to external contamination.
The BPD identified several studies that they claim demonstrate the effectiveness of these decontamination procedures. For their part, the plaintiffs have identified reasons that these tests would not translate to a real-world scenario, for example due to the brief period of time between contamination and decontamination in the study. There is some evidence in the record that the Psychemedics wash procedures are particularly effective relative to other wash procedures. 8
Psychemedics also looks not only at the amount of cocaine present in the hair sample, but also at the ratios between the cocaine and cocaine metabolites. Cocaine metabolites are
8 For example, the Stout report, cited in the expert report of the BPD's expert Dr. Kadehjian, shows that the Pychemedics wash criterion performed better than other decontamination procedures, and that after the wash procedures, the samples in the study were reported as negative by Psychemedics.
21

produced by the human body as it expels cocaine, and therefore the presence of metabolites in particular ratios is used by Psychemedics as an indicator of ingestion rather than mere exposure. Plaintiffs present expert testimony that casts doubt on the proposition that the presence of metabolites necessarily indicates ingestion rather than exposure. For example, plaintiffs' expert, Dr. Kidwell, noted that some metabolites are produced during the washing decontamination process itself. Some metabolites may be present in cocaine on the street due to impurities, or they may develop through degradation of cocaine once it is incorporated into hair through exposure. A 2009 Department of Justice report further expressed concern about the use of ratios to distinguish exposure from ingestion, noting that metabolites can be present in cocaine as a result of the manufacturing process in unknown ratios.
Despite these problems, two of plaintiffs' experts acknowledge that the decontamination procedures remove a significant portion of cocaine contamination from exposure. Dr. Walsh has stated that •over the last few years many researchers have demonstrated that while wash procedures can remove some of the cocaine present in hair, they cannot remove it all." Dr. Kidwell credited Psychemedics' procedures with removing between 83 percent and 97 percent of external contamination.
22

In addition to general concerns about the ability of Psychemedics' testing to distinguish between exposure and ingestion, the plaintiffs' primary contamination-based objection to the hair test relates to contamination that passes the outer layer of the hair, the cuticle, and reaches the cortex, the inner portion of the hair that contains melanin, the substance that determines hair color. Cocaine binds to melanin, so individuals with higher proportions of melanin, such as those with darker hair, are likely to have higher levels of cocaine in their hair due to environmental exposure.9
In order for cocaine to reach the melanin in the cortex, the cuticle would have to be damaged. Dr. Kidwell's affidavit suggests that this is more likely to be the case with officers with African-American hair than other officers. Dr. Kidwell's affidavit explains that cosmetic treatment often leads to damage to the cuticle, which permits cocaine to enter the cortex and bind to melanin. This is exacerbated by applying topical cosmetic products containing oil and glycerol that are often used on cosmetically treated hair. Oil absorbs and concentrates cocaine from the environment, and glycerol swells the hair and
9 Asian Americans as a population group have the most melanin content in their hair of any group. BPD notes that no AsianAmerican officers have tested positive for cocaine. AfricanAmerican hair has lower levels of melanin, but the melanin may be at greater risk for exposure through damaged cuticles as explained below.
23

provides the opportunity for drug transfer. Black officers are more likely to treat their hair cosmetically and to use certain cosmetic products for cultural reasons. Defendants counter that the effects of hair treatment on drug absorption due to environmental exposure are speculative and have not been shown in studies to happen with any significant regularity.
b. Standard Required for Business Necessity The terms "business necessity" and "job related" are not clearly defined in the law, but when Congress enacted the Civil Rights Act of 1991, Pub. L. No. 1-2-166 § 3, 105 Stat. 1071 (1992), it also explicitly approved of the standards articulated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and Albermarle, 422 U.S. 405, while rejecting the less rigorous interpretation in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (holding that the employer only bears the burden of production). 317 Cong. Rec. S. 15,276 (daily ed. Oct. 25, 1991) (interpretive memorandum); see also U.S. v. Mass., 781 F.Supp.2d 1 (D. Mass. 2011) (detailing the various standards stated by the Supreme Court and Congress' response in the Civil Rights Act of 1991) . In Griggs, the Court held that the employer must show that a challenged practice is "demonstrably a reasonable measure of job performance," 401 U.S. at 436, has "a manifest relationship to the employment in question," id. at 432, and "bear[s] a
24

demonstrable relationship to successful performance of the jobs for which it [is] used," id. at 431. In Albermarle, the Supreme Court held that "discriminatory tests are impermissible unless shown by professionally acceptable methods, to be 'predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." 422 U.S. at 431.
The standards for job relatedness and business necessity focusing on reasonableness, probability and correlation reflect the fact that the law does not require that an employer prove that a test or evaluation is perfect. A test can have an error rate but still be predictive and significantly correlated with a job function. The degree of correlation required between the qualification and an essential job function is reflected on a sliding scale, depending on the size of the test's adverse impact. See, e.g., Bates v. United Parcel Serv., Inc., 511 F.3d 974, 996 (9th Cir. 2007) (quoting Glady v. County of Los Angeles, 770 F.2d 1421, 1432 (9th Cir. 1985)). A number of courts have permitted more leeway for employment tests that relate to public safety, as this one does. See, e.g., Bates, 511 F.3d at 996 (quoting EEOC v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000)). That an assessment tool could be more accurate need not itself be dispositive, so long as it reliably
25

predicts an employee's suitability for a job based on an important element of job behavior. See Lopez v. City of Lawrence, 2014 U.S. Dist. LEXIS 124139, at *61 {D. Mass. Sept. 5, 2014), appeal docketed, No. 14-1952 {1st Cir. Sept. 17, 2014) {"for assessing validity, the fact that [a civil service examination] could have been better does not mean necessarily that it was not good enough to be deemed sufficient. The key question regarding the content validity of a selection method is whether it reliably predicts a candidate's suitability for the job. ") .
Plaintiffs argue that the hair drug test's inability to identify all cases of external contamination make it unreliable and therefore it cannot be considered significantly correlated with drug use. That position relies on an all-or-nothing view of reliability. However, the job-relatedness inquiry permits a reasonable error rate so long as there is a significant correlation or predictive nexus between the test and the job requirements. As the First Circuit stated in Jones, plaintiffs' evidence "offer[s] 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." Jones, 752 F.3d at 54. A review of the summary judgment record before me confirms that the plaintiffs have failed to present evidence from which a reasonable jury
26

could determine that the hair drug test is not predictive of or significantly correlated with drug use.
Even if the test only determines exposure to cocaine through either ingestion or environmental contamination over a threshold level, it nevertheless likely would be significantly correlated with drug use, because a person whose hair tests positive for a higher level of cocaine, regardless of the source of the cocaine, is more likely to be a drug user than a person whose hair tests negative. As more precautions are built into the process, the less likely it is that the cocaine would be present in the test results at the cut-off level for reasons other than ingestion, although the test may never reach 100% accuracy. Once a threshold of significant correlation is reached, the question whether the test must be further improved is the subject of the superior alternative inquiry, not a function of the business necessity or job-relatedness inquiry.
Here, the record provides evidence of such precautions and supports the proposition that the number of false positives, if any, would be a small percentage of the samples that did have cocaine on or in them due to environmental exposure. There is no dispute that the hair test reliably identifies cocaine and cocaine metabolites at a level of 5 ng/10 mg. Plaintiffs do not dispute that their hair samples tested positive for cocaine or cocaine metabolites. There is no material dispute that the
27

officers who tested negative properly tested negative. Dr. Kidwell, plaintiffs' expert, agreed that the extensive decontamination procedures by Psychemedics remove a very significant percentage of environmental contamination, from 83 to 97 percent.
Plaintiffs vigorously dispute the ability of the decontamination procedures to remove completely cocaine that has bound to melanin in the inner cortex of a hair specimen due to environmental exposure and the ability of the hair testing to distinguish between environmental cocaine and cocaine that has been processed through a person's body. Evidence in the record does support a dispute of fact on these points. However, the plaintiffs have not presented any evidence that shows this happens in significant numbers in real-world situations. Plaintiffs have shown that cocaine could enter through the cuticle into the cortex, particularly for damaged or treated hair, and have stated that African-American hair would be more likely to have a damaged cuticle, although they have presented no evidence that the plaintiffs in this case had treated or damaged hair.1o
10 Dr. Kidwell's report mentions that plaintiff Jones used a hair gel conditioner, but I have not been directed to any other evidence in this record of hair treatment or products of the plaintiffs.
28

Undisputed evidence presented by the BPD suggests that the effect - if any - due to external contamination is a small one after the hair samples go through the Psychemedics decontamination procedure. The eight sworn officer plaintiffs who went through the hair test multiple times never previously tested positive for cocaine. The BPD notes that the BPD's Drug Control Unit, which is responsible for conducting drug investigations and undertaking drug arrests, is made up of eighty-eight officers, including an unspecified number of officers with African-American and other dark hair. None of those officers has ever tested positive. Similarly, none of the officers in the Evidence Management Unit, which regularly manages cocaine and other drug evidence, has ever tested positive on the BPD hair drug test. Id.
Plaintiffs' experts themselves acknowledge that the hair drug testing has legitimate and valuable role to play as a screening mechanism in identifying officers who may use drugs, as evidenced by Dr. Kidwell's suggestion discussed below that hair drug testing be part of a proposed superior alternative. In the face of the BPD's evidence of the general reliability of the hair drug test at detecting cocaine and cocaine metabolites and the efficacy of the decontamination procedures on most types of exposure contamination, the plaintiffs' hypothetical evidence related to the possibility of unremediable contamination is not
29

evidence of a significant enough effect to defeat the BPD's evidence that the hair drug testing generally is reliable and is predictive of and significantly correlated with important elements of work behavior. See Jones, 752 F.3d at 54-55. B. Superior ~ternative Practice
Once the BPD has demonstrated - as it has here - the business necessity and job relatedness of the hair drug test, the plaintiffs still •have 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
.'" Jones, 752 F.3d at 54 (quoting Albermarle, 422 U.S. at 425) . Plaintiffs must show that •the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs." Jones, 752 F.3d at 55 (quoting Ricci v. DeStefano, 557 U.S. 557, 578 (2009)) .
At this stage, the burden of production and persuasion shifts back to the plaintiffs. Albermarle, 422 U.S. at 435. Given that •disparate-impact plaintiffs bear the burden of production and persuasion at this stage . . . plaintiffs may not rest on speculation regarding the availability, validity, or less discriminatory nature of their proffered alternatives."
30

Johnson v. City of Memphis, 770 F.3d 464, 472. (6th Cir. 2014)

(citing Allen v. City of Chicago, 351 F.3d 306, 313, 316-17 (7th

Cir. 2003)).

The First Circuit opinion in this case repeatedly

emphasized the high standard, "often requir[ing] extensive

data," for proving an alternative practice, particularly where

the sample size is large and the racially disparate effect is

small, as it is here. Jones, 752 F.3d at 53. "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

" I d. The plaintiffs' statistical expert, Sharon

Kelly, concededly did not analyze the statistical performance of

other types of drug tests - her analysis was focused exclusively

on the BPD hair test results from 1999-2006. Kelly also did not

analyze the results of modifications that the BPD and the union

made to Rule 111 and the hair testing procedure in 2007.

Despite the lack of such statistical evidence, I consider

below whether the plaintiffs have presented the type of

extensive data that the First Circuit identified as necessary to

prevail at this stage. The plaintiffs must show an alternative

(a) with less disparate impact, (b) that is equally valid, and

(c) that the BPD refused to implement.

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1. Urinalysis Plaintiffs first propose that the BPD should have used urinalysis instead of the hair drug testing. The plaintiffs point to a long history of the BPD's use of urinalysis, noting that the department has used urinalysis on a reasonable suspicion basis since the early 1990s. The BPD no longer uses urine testing regularly, since the Supreme Judicial Court ruled in 1991 that random urinalysis was an unreasonable search and seizure under the Massachusetts constitution in the absence of a showing of a drug problem in the BPD, Guney v. Police Commissioner of Boston, 582 N.E.2d 523 (Mass. 1991). It continues to use urinalysis for officers who agree to undergo drug rehabilitation treatment after a positive hair test. The plaintiffs note that urinalysis is less expensive than hair testing and is widely accepted in the scientific community. It is undisputed that urinalysis has a longer history of use and validation than the hair drug tests. It is the sole approved method for federal employee drug testing and it has been regulated since the mid-1980s with an extensive regulatory and oversight system. Commissioner Evans testified in a deposition that he noticed an increased disparity in the number of minority officers who were testing positive shortly after the hair drug test was implemented instead of urinalysis. The plaintiffs' and
32

the BPD's experts both addressed the lack of racial disparity or
bias in urine testing. In his deposition, Dr. Walsh, the
plaintiff's expert, stated that "there was never any indication
of any kind of racial bias" in urinalysis. 11 The BPD's expert,
Dr. Kadehjian, in his deposition stated that "[u]rine testing, I
would hold, certainly has no evidence of racial bias." In
response to the question, "You personally don't hold the opinion
that urinalysis is race-biased, do you?" he answered, "No, I do
not."
Dr. Kadehjian's expert report, however, stated that studies
he had reviewed "demonstrated similar relative rates of positive
results between African-Americans and Caucasians for urine
testing, hair testing and self-reported drug use, with African-
Americans being identified about twice as often as Caucasians,
regardless of the test used. These studies even indicated that
urinalyses detected African-Americans relative to Caucasians at
a slightly greater rate than hair analyses." After reviewing
11 The BPD argues that I should disregard Dr. Walsh's statement in his deposition that urinalysis has no racial bias on the ground that his opinion on urinalysis was not disclosed in his expert report. Dr. Walsh's statement has been part of the summary judgment record from 2011 to the present without objection by the BPD. Given that the statement was made in response to direct questioning by BPD's counsel during a deposition, BPD cannot fairly claim lack of notice. I note, however, that the statement, made without support, does not on its own carry significant weight, although it is consistent with the testimony of Dr. Kadehjian, the BPD's expert. Under the circumstances, I will not preclude Dr. Walsh's statement.
33

the various experts' statements and the observations of Commissioner Evans, I find that there is at least a dispute of material fact about whether there is any racial bias or racially disparate effect in urine testing, although the evidence seems largely to support the proposition that there is not. By contrast, it is established, as a matter of law of the case, that there is some racially disparate effect in hair drug testing, at least as practiced by the BPD and Psychemedics, Jones, 752 F.3d at 53 {granting summary judgment to plaintiffs on the prima facie evidence of a racially disparate impact) .
To defeat summary judgment in favor of the BPD, the plaintiffs must not only show that there is a question of material fact that urinalysis likely has less disparate impact but also that there is a dispute of material fact about whether urinalysis is an equally valid means of testing officers for drug use. The plaintiffs point to the wide acceptance of urinalysis, such as for federal workplace drug testing, as well as the BPD's continued use of urinalysis for individuals who tested positive with the hair drug test and are participating in rehabilitation, as evidence that urinalysis is an equally valid alternative to hair testing. There is undisputed evidence in the record, however, that hair testing and urinalysis are not equally valid alternatives, particularly when the benefits and burdens of urinalysis are considered. See Watson v. Ft. Worth
34

Bank & Trust, 487 U.S. 977, 998 (1988) (plurality) ("Factors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals.")
Urinalysis reliably identifies ingestion of drugs over only a 48-hour window. A hair drug test, by contrast, covers a 90day window. Urine can be adulterated, such as through dilution, whereas hair samples are less easily manipulated. 12 There are also differences in collection method, with collection and handling of a hair sample being significantly less invasive, particularly if multiple samples need to be collected during the year. Plaintiffs have not addressed how a reasonable suspicion urinalysis program, as required by the Supreme Judicial Court in Guney, 582 N.E.2d 523, would be an adequate substitute for the hair drug testing, which is done on a regular, yearly basis. Plaintiffs have presented no evidence of the relative costs of a comparable urinalysis program. While they note that a single urine test is less expensive than a single hair test, there is no evidence about the number of urine tests that would be necessary to provide evidence that officers are drug free over a
12 I note that one of plaintiffs' experts, Dr. Rollins, contends that due to advances in urine testing, most laboratories can now detect adulteration in urine samples. The record before me, however, is not robust in support of this contention.
35

larger period of time like that tested through hair samples. The BPD has presented evidence that urinalysis is less sensitive in detecting drugs than the hair drug test and the plaintiffs have not presented evidence to the contrary. I find that despite showing the wide acceptance of urinalysis, the plaintiffs have failed to show that urinalysis could, as a practical matter, be an equally valid alternative to the hair test when benefits and burdens are weighed.
2. Hair Testing Plus Plaintiffs turn next to alternatives that build on use of the hair drug test but incorporate additional safeguards. Plaintiffs' expert Dr. Kidwell proposed an alternative in this vein, suggesting that BPD could require hair tests several times per year on a random basis, and, if an individual tested positive, then place that individual in a frequent, random urinalysis program. He suggested the BPD only take adverse employment action if the urinalysis results were positive. This would be in contrast to the current system, in which the BPD uses urinalysis only once an officer enters a drug rehabilitation program after testing positive on the hair drug test, after admitting drug use agreeing to a suspension. Plaintiffs also suggest that the BPD could consider the results of independent contemporaneous hair, blood and urine tests, as well as medical records, notes from medical doctors, and
36

employment history, to supplement the hair drug test in making any employment decision.
a. Admissibility At the outset, the BPD argues that Dr. Kidwell's affidavit is inadmissible13 because plaintiffs did not previously disclose him as an expert pursuant to Rule 26(a) (2) and he was therefore not deposed during discovery. At a status conference on October 27, 2014, the plaintiffs explained that they seek to designate Dr. Kidwell, a Naval Research Laboratory Research Scientist, as an expert for trial if the case survives summary judgment. Dr. Kidwell's affidavit had been a part of the record since June 2003, but he had not previously been designated as an expert because plaintiffs were told that he would not be permitted to act in that capacity. Dr. Kidwell recently informed the plaintiffs that he is available to testify. At the status conference, plaintiffs sought admission of Dr. Kidwell as an expert but noted that they were not seeking to amend the summary judgment record because Dr. Kidwell's affidavit was already part of the summary judgment record that was before Judge O'Toole and that went before the First Circuit. While the BPD opposed
13 The BPD only objects to use of Dr. Kidwell's affidavit in the context of his suggestions about alternatives, but this objection would appear to apply as well to use of the affidavit to explain features of African-American hair as detailed in the business necessity analysis above. The objection, however, is not so broadly stated.
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permitting supplemental expert designations, they expressed no objection to the state of the summary judgment record as it existed before Judge O'Toole and the First Circuit, and did not object or dispute the plaintiffs' claim that Dr. Kidwell's affidavit was already a part of the summary judgment record.
The BPD contends that the plaintiffs' failure to disclose Dr. Kidwell as an expert under Rule 26 requires that his opinion and affidavit be excluded from consideration on summary judgment. The plaintiffs acknowledge that Dr. Kidwell was not disclosed as an expert, but they argue that preclusion is inappropriate. Preclusion is not a "mechanical exercise;" I have discretion to choose a less severe sanction, Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77-78 (1st Cir. 2009). I must consider a wide range of factors in making a decision about preclusion, including the history of the litigation, the centrality of the evidence that may be precluded, any justification for late disclosure, prejudice to the opposing party, and any effect upon the court's docket. Id. at 78.
The plaintiffs argue that they were justified in failing to disclose Dr. Kidwell as an expert earlier because they believed he would not be available to testify, and that the BPD has essentially waived any objection it might have had to inclusion of the affidavit in the summary judgment record by not raising it before Judge O'Toole, the First Circuit, or previously before
38

me. The BPD has never previously objected to inclusion of the affidavit in the summary judgment record. Dr. Kidwell's affidavit is undisputedly important to the plaintiffs' case, particularly as it provides an explanation for the mechanics of external cocaine contamination for African-American hair and provides one of the few sources of proposed alternatives in this case.
While the BPD objects that it never received an expert report pursuant to Rule 26{a) {2) {B) of the Federal Rules of Civil Procedure, the plaintiffs did provide in June 2003 the detailed affidavit that is now at issue. The affidavit contains Dr. Kidwell's qualifications, opinion, and sources of information upon which he relied, the elements required in a Rule 26 expert report. Although the defendants did not seek to depose Dr. Kidwell because they thought he would not be testifying at trial, they did have the opportunity over more than a decade to adduce evidence and testimony that counters the opinions of Dr. Kidwell as contained in this affidavit. While the BPD may be somewhat prejudiced by not having had the chance to depose Dr. Kidwell before aspects of his affidavit were drawn more directly into the core of the remaining dispute following the First Circuit's opinion, permitting the BPD's objection at this late stage after they had given every indication over more than ten years that they had no objection to inclusion of his
39

affidavit in the record would prejudice the plaintiffs because they would have no opportunity to remedy any failures of disclosure. Given the length of time that the affidavit has been considered a part of the record in this case, the BPD cannot fairly claim surprise. Considering the totality of the circumstances related to the non-disclosure of Dr. Kidwell as an expert, I conclude that Dr. Kidwell's affidavit should not be precluded from consideration at summary judgment. 14
b. Substantive Merit Upon consideration, I find Dr. Kidwell does not provide statistical or other data about the effect that adopting these modifications would have on the outcomes of drug testing, and the plaintiffs do not point to any other data supporting adoption of these particular suggestions. Nonetheless, since these proposals build on the hair drug test themselves and add additional procedures, any concern that they could lead to a greater racial disparity is largely absent. The EEOC recognizes that in some circumstances, procedures can be combined into a "significantly more valid procedure," 29 C.F.R. § 1607.3(B). The fact that the cumulative alternative relying on additional confirmation would not lead to an even more racially disparate
14 I note, however, if this case were to continue to trial, I would permit the BPD to depose Dr. Kidwell and would hear argument about any additional discovery that may be needed.
40

outcome, however, does not provide extensive data or other support for a claim that it would lead to a less disparate outcome.
In addition, just as the plaintiffs have not presented sufficient evidence from which a reasonable jury could conclude that a urinalysis program alone would be equally valid given the trade-offs in terms of costs and invasiveness of testing, similarly any evidence of the effects of using hair testing and urinalysis in combination is lacking from the record. Dr. Kidwell's only assessment of the equal validity of his proposal is a statement that u[t]he cost of such a policy could be even less than the current hair testing program, and yet provide even a better deterrent to drug use." This speculative and unsupported endorsement of a hybrid program of uncertain dimensions does not provide the uextensive data" from which a reasonable jury could conclude that this is an equally valid alternative.
3. Current Hair Test Procedure The BPD modified Rule 111 as of January 1, 2007, to include additional and more robust safety-net tests and double
confirmation of hair testing. See Commission Decision at
lll(uthe use of 'true safety nets' and 'double confirmation' in hair testing was always available and, indeed, that is the procedure now followed by the BPD.") The plaintiffs point to
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the BPD's adoption of the revised safeguards as evidence that a less discriminatory alternative to the hair drug test as it had been administered since 1999 was available. See, e.g., Adams v. City of Chicago, 469 F.3d 609, 612 (7th Cir. 2006) (looking to subsequent procedure as evidence that an alternative was available at an earlier time); Christner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1263 (6th Cir. 1981) (subsequent practice is relevant to the existence of a viable alternative employment practice) .
The only evidence in the record that the 2007 changes had an effect was the statement of Ms. Horowitz, an attorney for the BPD, who testified before the Commission on November 20, 2010, that since the testing procedures were modified in July 2007, there had been only one confirmed positive test for cocaine. Such a significant decrease in the number of positive tests certainly reflects the fact that the modifications provided more protections to officers, but it does not provide information about any tradeoffs that may exist between ability to identify drug users in the police force and the lower risk of false positives due to additional safeguards. The record presents barely any evidence at all about the nature of the modifications and whether the procedure used today is equally valid at identifying drug users. The record does not contain the evidence required to show an equally valid alternative.
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4. Refusal to Adopt Alternative Procedures The existence of an alternative procedure is only sufficient to overcome the burden of summary judgment if the defendants refused to use a less discriminatory alternative. The plaintiffs point to the fact that no alternative was implemented until 2007 as evidence that the BPD refused to implement a proposed alternative, but the plaintiffs do not point to specific factual allegations concerning proposals to the BPD or equally valid alternatives of which the BPD was aware that they refused to implement. The plaintiffs note that after the racial disparity was first publicized, Commissioner Evans met with the NAACP and the Massachusetts Association of Minority Law Enforcement Officers (MAMLEO) to address concerns about the disparity, and he stated that "it's been my position . . . that if anybody would provide me with a valid scientific study that showed that [the Hair Test] was discriminatory, that the drug testing would cease." Plaintiffs point to that statement as evidence that the BPD's position was that "those questioning the Hair Test had to prove that it was unreliable before he would consider any alternative." The language of the Commissioner's statement, however, suggests a willingness to modify or end the hair testing procedure, not a refusal to do so, if he saw evidence of a discriminatory effect.
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In a section of the plaintiffs' additional statement of material facts titled •Alternatives to the Hair Test Proposed or Available," the plaintiffs note the suggestions in Dr. Kidwell's affidavit and the fact that numerous plaintiffs underwent independent tests of various types. No other facts are alleged about offers or proposals of alternatives. The plaintiffs are correct that EEOC regulations require an employer to investigate •suitable alternative selection procedures" when assessing validity, 29 C.F.R. § 1607.3(B), but here the plaintiffs have not pointed to any feasible alternative selection procedures of which the BPD might have been aware.
Despite the fact that the BPD test and Rule 111 were the subject of extensive collective bargaining negotiations and collaboration between the BPD and the Boston Police Patrolman's Association, the plaintiffs do not present any allegation that the union or plaintiffs proposed alternatives that the BPD refused to consider. In Ricci v. DeStefano, 557 U.S. 557, 589 (2009), in considering whether a proposed alternative test was equally valid to one specified in a contract with a union, the Supreme Court stated that where the choice of an employmentrelated procedure is •the result of a union-negotiated collective-bargaining agreement, we presume the parties negotiated that [procedure] for a rational reason." Similarly here, given that Rule 111 and the testing procedure were subject
44

to extensive discussion with the union and were agreed to by the union, 15 there is a presumption that the procedure chosen was chosen for a rational reason. The fact that the BPD ultimately did come to agreement with the union to modify the hair drug testing procedure through the 2007 amendment to Rule 111 also is evidence of a willingness to adopt an alternative practice, albeit slowly and some years after a disparity was first identified. In this context, summary judgment is appropriate for the BPD in the absence of any compelling evidence of the BPD's refusal to consider and adopt an alternative equally valid procedure.
III. CONCLUSION For the reasons set forth more fully above, it is hereby ORDERED that the Defendant City of Boston's Motion for Summary Judgment (Doc. No. 218) is GRANTED.
/s/ Douglas P. Woodlock DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
15 With the exception of the very low level of .2 ng/10 mg used by Psychemedics as the safety-net test during some of the years at issue; there is evidence that the union did not know of or agree to that level in the safety-net testing.
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 Case 1:05-cv-11832-GAO Document 17 Filed 04/07/06 Page 1 of 25

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

RONNIE JONES, ET AL., Plaintiffs, vs.
CITY OF BOSTON, ET AL., Defendants.

) ) ) ) ) ) NO. 05-11832-GAO ) ) ) )

FIRST AMENDED AND SUPPLEMENTAL COMPLAINT AND JURY DEMAND Introduction
1. This is a civil rights action to redress the deprivation of rights guaranteed by the Constitutions and laws of the United States and the Commonwealth of Massachusetts. Pursuant to the Boston Police Department's Substance Abuse Policy, the defendants have, since 1999, unlawfully based employment decisions upon the results of a flawed, imprecise, unreliable, arbitrary, and racially biased mandatory drug test performed on hair samples (the "Hair Test").
2. The plaintiffs have no objection to the concept of the mandatory drug-testing of law enforcement officers and applicants for employment as law enforcement officers. The plaintiffs contend, however, that the defendants' use of the Hair Test is unlawful because, among other reasons, it (a) has a disparate, adverse, and discriminatory impact on Boston police officers and applicants of color; (b) is used despite the availability of alternative testing methods and procedures that would have less disparate, adverse, and discriminatory impact on Boston police officers and applicants of color; and (c) constitutes discrimination on the basis of a false and erroneous perception that the plaintiffs had a disability.
3. Upon information and belief, there are currently no government-mandated guidelines for testing hair samples for the presence of illegal drugs. Nor are there such guidelines concerning collection procedures or cut-off levels for the Hair Test used by the

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defendants. In addition, scientific studies demonstrate that the procedures used by the defendants to test hair samples for the presence of illegal drugs are flawed, imprecise, arbitrary, unreliable, and inherently biased against people of color. For example, upon information and belief, the procedures and methods used in performing the Hair Test cannot identify whether a result that is positive for the presence of illegal drugs is due to ingestion or to external contamination from environmental exposure. In addition, the Hair Test has an inherent propensity to yield "false positives"' on hair samples taken from persons of color because of the composition of the hair itself and other factors. Indeed, upon information and belief, the Society of Forensic Toxicologists considers the testing of hair samples for the presence of illegal drugs to be too unreliable to be used in making individual employment decisions.
4. Seven of the plaintiffs are former Boston police officers-- "former," because they were wrongfully terminated on the basis of their allegedly positive results on the Hair Test. One plaintiff is a police officer who is still with the Boston Police Department but who, on the basis of her allegedly positive Hair Test, was wrongfully forced to choose between termination and signing documents falsely stating that she had requested drug rehabilitation treatment and agreeing to, among other things, undergo such treatment at her own expense. Another plaintiff is a police cadet who was wrongfully terminated on the basis of her allegedly positive result on the Hair Test. Another plaintiff was denied employment altogether on the basis of her allegedly positive Hair Test. The plaintiff officers who were terminated each served with distinction, including co=endations and medals, for between 4 and 28 years; collectively, for nearly 100 years. The plaintiff officer still with the Boston Police Department has served for approximately 18 years and the plaintiff cadet had served for approximately 4 years prior to her wrongful termination.
5. Each of the plaintiffs vehemently denies using illegal drugs. The plaintiffs'
1 Hair Test results described herein as "false positive" and "allegedly positive" are results reported as "positive" for an illegal drug, although the person identified as having tested positive did not ingest the illegal drug reported in the result.
2
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allegedly positive results on the Hair Test is the only "evidence" of illegal drug use by the plaintiffs that was considered by the defendants in making their adverse employment decisions against them. All but two of the plaintiffs obtained results negative for the presence of illegal drugs in independent hair drug tests performed soon after the allegedly positive result on the Hair Test used by the defendants. Indeed, the independent hair drug tests of some of the plaintiffs were performed by the very same laboratory that performed the Hair Tests on which they had allegedly tested positive. In the case of one plaintiff, the negative and allegedly positive results were obtained from tests performed by the very same laboratory on hair samples taken on the very same day.
6. The defendants' use of the Hair Test in making employment decisions disproportionately and adversely impacts police officers and applicants of color and constitutes unlawful discrimination on the basis of race as well as on the basis of a false and erroneous perception of a disability. As a consequence of the defendants' policies, customs, practices, and conduct with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions, the plaintiffs have been terminated from their employment with the Boston Police Department or have been forced to sign documents falsely stating that they have requested drug rehabilitation treatment and agreeing to undergo such treatment at their own expense. The result is the ruination of the lives, careers, and reputations of the plaintiffs.
7. Among the damages that the plaintiffs have suffered and continue to suffer as a consequence of the defendants' policies, customs, practices, and conduct are, without limitation, loss of compensation, benefits, seniority, and employment opportunities, lost careers, damaged reputations, loss of standing in the community, humiliation, mental pain, anguish, and severe emotional distress.
Jurisdiction and Venue 8. The plaintiffs' civil rights claims are based upon Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e, et. seq.; Title I of the Americans with Disabilities Act of
3
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1990, codified at 42 U.S.C. § 12101, et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103; Mass. Gen. Laws ch. 12, §§ llH and 111; Articles 1, 10, 11, and 12, and Article of Amendment 114 of the Massachusetts Declaration of Rights. This Court has subject matter jurisdiction over the plaintiffs' claims pursuant to Mass. Gen. Laws ch. 212, §§ 3, 4; Mass. Gen. Laws ch. 231A, § 1; Mass. Gen. Laws ch. 12, §§ llH, 111; 28 U.S.C. § 1343; and 42 U.S.C. § 12117.
9. All plaintiffs have exhausted the necessary administrative prerequisites. Prior to filing this civil action, each plaintiff timely filed written Charges of Discrimination, asserting claims of discrimination, with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission ("EEOC"). This civil action is filed within three years of the discriminatory acts alleged in this Complaint and within 90 days of Right to Sue letters from the EEOC.
10. Venue is proper in Suffolk County pursuant to Mass. Gen. Laws ch. 223, § 1. Parties
11. Defendant City of Boston ("City") is a municipality of the Commonwealth of Massachusetts and owns, operates, manages, controls, and is responsible for the actions of the Boston Police Department. The City is an "employer" within the meanings of 42 U.S.C. § 2000e, 42 U.S.C. § 12111(5), and Mass. Gen. Laws Chapter 151B, and is subject to suit under all of the claims alleged in this Complaint.
12. Defendant Boston Police Department ("BPD") is a paramilitary law enforcement organization of the City. The BPD is an "employer" within the meanings of Title VII, 42 U.S.C. § 2000e, 42 U.S.C. § 12111(5), and Mass. Gen. Laws ch. 151B and is subject to suit under all of the claims alleged in this Complaint.
13. Defendant Kathleen O'Toole is the current Commissioner of the BPD. As is relevant to this Complaint, Commissioner O'Toole is responsible for making, implementing, permitting, and overseeing the BPD's (a) policy decisions; (b) customs and practices; (c) training
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and supervision ofBPD employees; and (d) acts and omissions with respect to all allegations and claims set forth in this Complaint. Commissioner O'Toole is sued in her official capacity.
14. Plaintiff Ronnie Jones is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1983 and provided approximately nineteen years of service until he was wrongfully terminated on or about August 9, 2002. Officer Jones had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
15. Plaintiff Richard Beckers is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1989 and provided approximately thirteen years of service until he was wrongfully terminated on or about August 9, 2002. Officer Beckers had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
16. Plaintiff Walter Washington is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1989 and provided approximately fourteen years of service until he was wrongfully terminated on or about April22, 2003. Officer Washington had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. During his service, Officer Washington received the BPD Medal of Honor twice, as well as the Hanna Award for valor and numerous letters of commendation from the BPD. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
17. Plaintiff William Earl Bridgeforth is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. During the time of the acts complained of herein, he was a resident of Suffolk County, Massachusetts. He joined the BPD in 1989 and provided approximately fourteen years of service before he was wrongfully
5
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terminated on or about September 11, 2003. Officer Bridgeforth had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. He had taken and passed a mandatory annual drug test every year that it was administered prior to a Hair Test upon which the defendants based their adverse employment decisions, including the decision to terminate his employment.
18. Plaintiff Shawn N. Harris is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1999 and provided approximately four years of service before he was wrongfully terminated on or about April 22, 2003. Officer Harris had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. During his service, Officer Harris received the BPD Medal of Honor, as well as the Hanna Award for valor; a commendation from prior Boston Police Commissioner Paul Evans; and several letters of appreciation from community residents. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
19. Plaintiff Eugene Wade is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1975. He was promoted to sergeant in 1985 and to sergeant-detective in 1992. He provided approximately 28 years of service before he was wrongfully terminated on or about February 6, 2003. Sergeant-Detective Wade had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his termination was based.
20. Plaintiff George C. Downing, Jr. is an African-American male who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. He joined the BPD in 1995 and provided approximately eight years of service before he was wrongfully terminated on or about Jannary 6, 2004. Officer Downing had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. He had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which his
6
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termination was based. 21. PlaintiffClararise Bristow is an African-American female who resided in Suffolk
County, Massachusetts during all times relevant to this Complaint. The BPD extended an offer of employment to Ms. Bristow in December 2002, but wrongfully refused to make her a permanent offer a short time later, based upon the same Hair Test administered to the other plaintiffs.
22. Plaintiff Rachelle Couch is an African American female who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. She joined the BPD in 1987 and has provided approximately 18 years of service. She had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which the defendants based their adverse employment decisions. Officer Couch continues to serve as a Boston Police officer, despite having allegedly tested positive on the Hair Test because, but only because, in order to keep her job, she signed documents falsely stating that she had requested drug rehabilitation treatment and agreeing to, among other things, undergo such treatment.
23. Plaintiff Keri Hogan is an African American female who resided in Suffolk County, Massachusetts during all times relevant to this Complaint. She was commissioned as a police cadet by the BPD in 2001 and provided approximately 4 years of service before she was wrongfully terminated in 2005. Ms. Hogan had an excellent service record that was free of warnings or disciplinary actions related to drug abuse. She had taken and passed a mandatory annual drug test every year that it was administered prior to the Hair Test upon which her termination was based.
24. The Massachusetts Association of Minority Law Enforcement Officers ("MAMLEO") represents the interests of all BPD law enforcement personnel and applicants of color, including the interests of the plaintiffs and others who have been, or may be, adversely affected by the Hair Test. MAMLEO has offices in Suffolk County, Massachusetts.
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Factual Allegations The BPD's Substance Abuse Policy and the Challenged Hair Test 25. Beginning in 1999, the Hair Test has been administered annually to all sworn uniformed employees of the BPD, pursuant to the BPD's Substance Abuse Policy, as stated in BPD Rule 111, dated December 17, 1998 (the "Substance Abuse Policy").2 The BPD purportedly instituted the mandatory Hair Test in order to detect unlawful drug use that allegedly took place during the previous weeks or months. 26. Although union representatives agreed to the Hair Test as part of collective bargaining agreements, this consent was secured on the basis of the defendants' misrepresentations that the Hair Test would be "conducted through a fair, reasonable, and objective hair analysis testing system," Substance Abuse Policy(V)(G), and without the union representatives' knowledge of the arbitrary, unreliable, unfair, and discriminatory nature and use of the Hair Test. 27. The Substance Abuse Policy specifically states that the "[t]he [BPD] agrees that it will establish and adhere to written collection and testing procedures for hair samples"; that "[t]hese procedures shall be fair and reasonable so as to ensure the accuracy and integrity of the test and process"; and that [t]hese written procedures will be appended to this Rule and become incorporated thereto." Substance Abuse Policy(V)(G). 28. The Hair Test is administered by the City's Occupational Health Department (the "Health Department"). Among other things, Health Department personnel are responsible for collecting hair samples and transmitting them to the laboratory for testing. 29. With respect to officers already employed by the BPD, the Substance Abuse Policy requires that the Hair Test be administered annually during the thirty-day period before or after the police officer's birthday. The BPD determines the date for the test and notifies the officer several days in advance. The Hair Test also applies to all applicants for the position of 2Although the Hair Test on BPD patrol officers began in 1999, testing of the detectives, sergeantdetectives, and superior officers was implemented in succession, starting in the year 2000.
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sworn police officer with the BPD. 30. According to the Substance Abuse Policy, the BPD uses the Hair Test to
determine "the presence of these five drugs, classes of drugs, or their metabolites: marijuana metabolites, cocaine metabolites, opiate metabolites, phencyclidine (PCP), and amphetamines." Substance Abuse Policy(V)(G). The Substance Abuse Policy provides that hair samples are to be collected by Health Department personnel and sent for testing by a licensed laboratory certified to test hair samples for the presence of illegal drugs.
31. The BPD contracts exclusively with Psychemedics Corporation ("Psychemedics") to perform the Hair Test on samples collected by Health Department personnel and to report the results. Upon information and belief, Psychemedics is not certified to test hair for the presence of illegal drugs, as required by the Substance Abuse Policy.
32. Under the procedures utilized by Psychemedics and the defendants, a hair sample provided to Psychemedics by the Health Department is initially tested by radioimmunoassay. If this test yields a positive result for the presence of illegal drugs, Psychemedics then tests the sample using a combination of chromatography and mass spectrometry methodologies. If there is again a positive result, this is reported to the BPD's Medical Review Officer, pursuant to the Substance Abuse Policy. Although the Substance Abuse Policy does not specify cut-off levels for distinguishing between positive and negative results with respect to the presence of illegal drugs in hair samples, Psychemedics reports a finding of cocaine at a level of Sng/1Omg or more as a positive result and lower levels of cocaine as a negative result.3 Pursuant to the Substance Abuse Policy, if the affected officer cannot provide an alternative medical explanation for the positive result, the Medical Review Office reports the Hair Test as positive for the presence of illegal drugs to the BPD.
33. The Substance Abuse Policy provides that, in the event that a positive result is reported to the BPD, the affected officer may request an additional "Safety Net" test within 72
3A nanogram ("ng") is one billionth of a gram; a milligram (''mg") is one thousandth of a gram.
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hours of receipt of the initial test results. Under the procedures utilized by Psychemedics and the defendants for the "Safety Net" test, a second hair sample is to be taken from the same body site as the original hair sample. The same tests are performed on the new sample as on the original sample, but a lower cut-off level is used to distinguish between positive and negative results. Although the Substance Abuse Policy does not specifY cut-off levels for distinguishing between positive and negative results with respect to the presence of drugs on the Safety Net test, Psychemedics currently reports a finding of cocaine at a level of 0.2ng/10mg or more as a positive result and lower levels of cocaine as a negative result on the Safety Net test. Psychemedics previously used a cut-off level of 2.0ng/10mg on the Safety Net test, which is an order of maguitude higher than the current cut-off level. Pursuant to the Substance Abuse Policy, the affected officer must pay for the Safety Net test and its review by the Medical Review Officer unless the result on the Safety Net test is negative.
34. A sworn officer or applicant whose Hair Test is reported to the BPD as positive is subject to termination or denial of employment, as the case may be. In the case of a sworn officer who tests positive on the Hair Test for the first time, the Substance Abuse Policy provides that the BPD may offer an alternative to termination: a 45-day suspension without pay and execution of a "Rehabilitation Agreement." This Agreement falsely states that the officer has requested drug rehabilitation treatment and agrees to undergo such treatment at his or her own expense, and requires placement in an administrative position; suspension of weapon-carrying privileges until a treatment provider certifies recovery; and submission to follow-up random drug testing for the next three years.
Problems with the HairTest 35. According to the defendants, each of the plaintiffs tested positive for cocaine on an initial Hair Test and on a follow-up Safety Net test performed by Psychemedics. Each of the eight sworn-officer plaintiffs had excellent service records during their employment with the BPD (ranging from 4 to 28 years), and none had previously been the subject of a past complaint for behavior indicative of illegal drug use. The same is true of the former police cadet. For
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several years prior to the Hair Test that precipitated their wrongful discharge, each of the eight sworn-officer plaintiffs had submitted to a mandatory annual drug test, including a Hair Test. The same is true of the former police cadet. All of these previous tests had been negative and each of the plaintiffs vehemently denies using illegal drugs.
36. All but two of the plaintiffs obtained results negative for the presence of illegal drugs in independent hair drug tests performed soon after their allegedly positive Hair Test results were reported. Indeed, the independent hair drug tests of some of the plaintiffs were performed by the very same laboratory that performed the Hair Tests on which they had allegedly tested positive. That is, the very same laboratory returned both negative and allegedly positive results on hair samples taken from these plaintiffs. In the case of one plaintiff, the negative and allegedly positive results were obtained from tests performed by the very same laboratory on hair samples taken on the very same day. In the case of another plaintiff, the negative and allegedly positive results were obtained from tests performed on hair samples taken only one day apart. The defendants have failed and refused to consider independent tests indicating that the plaintiffs were drug-free at the time of the Hair Test that falsely and erroneously indicated illegal drug use.
37. Although each of the eight sworn-officer plaintiffs was offered an opportunity to avoid termination by signing the Rehabilitation Agreement, this Agreement requires an admission of illegal drug use; drug treatment; placement in an administrative position; suspension of weapon-carrying privileges until a treatment provider certifies recovery; and submission to follow-up random drug testing for the next three years. Six of the officers refused because they did not use illegal drugs. These officers were terminated. The two remaining officers accepted the Rehabilitation Agreement, notwithstanding that they did not use illegal drugs, in order to keep their jobs. Of these two officers, one was reinstated after losing 45 days of pay and accompanying benefits. The other officer who accepted the Rehabilitation Agreement was reinstated. However, this officer was terminated after he allegedly tested
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positive on the Hair Test one year later, despite the fact that he had tested negative on ten or eleven random urine tests during that year.
38. Upon information and belief, there are currently no government-mandated guidelines for testing hair samples for the presence of illegal drugs. Nor are there such guidelines concerning collection procedures or cut-off levels for the Hair Test used by the defendants.4
39. The defendants rely exclusively on the work of one laboratory, Psychemedics, to perform all Hair Tests for the BPD and have rejected all independent tests that refute the results of the Hair Test.
40. Although the FDA has approved other methods of testing for the presence of illegal drugs (using blood and urine), upon information and belief, the FDA has not approved the procedures used by the defendants and Psychemedics to test hair samples for the presence of illegal drugs.
41. Forensic toxicologists have reported on the inability of repeated wash procedures to remove completely external cocaine contamination from the dark, coarse hair of AfricanAmericans. Upon information and belief, the Society of Forensic Toxicologists considers the testing of hair samples for the presence of illegal drugs to be too unreliable to be used in making individual employment decisions.
42. Upon information and belief, the defendants had knowledge, at least as early as 2002, that the reliability of the procedures they had chosen to use for the Hair Test was questionable in view of the fact that an increasing number of long-term officers of color were testing positive for cocaine on the Hair Test, even though they had excellent service records; no
4The Mandatory Guidelines for Federal Workplace Drug Testing Programs, initially published by the HHS in the Federal Register on Aprilll, 1988 (53 FR 11970-89) and extensively revised in the Federal Register on June 9, 1994 (59 FR 29908-31), establish scientific and technical guidelines for federal drug-testing programs, as well as standards for certification of laboratories engaged in urine drug-testing for federal agencies. A second revision to the Mandatory Guidelines regarding opiate testing was published in the Federal Register on September 30, 1997 (62 FR 51118-19). Upon information and belief, draft Guidelines are in the process of being finalized.
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history of illegal drug use; and denied using illegal drugs. The defendants nevertheless continue to use the Hair Test; administered in the same way; performed and interpreted by the same laboratory; and with the same disparate, adverse, and discriminatory consequences for officers and applicants of color in the terms and conditions of their employment.
43. The Hair Test is rife with flaws. For example, the defendants have failed to ensure that personnel responsible for collecting the hair samples and transmitting them to Psychemedics are sufficiently trained to follow the procedures necessary to ensure the integrity of the hair samples used in the Hair Test and that the hair samples provided to Psychemedics are of sufficient length and quantity to comply with the testing protocol.
44. The Hair Test is unreliable, imprecise, and arbitrary. Scientific studies have demonstrated flaws in the procedures used to test hair samples for the presence of illegal drugs as well as the hair drug test's inherent bias against people of color-- i.e., the propensity of the test to yield false positives on hair samples taken from persons of color. Moreover, upon information and belief, results obtained by laboratory analysis of the same hair sample can vary by more than 40 percent.
45. Upon information and belief, the defendants are aware of these studies but refuse to take remedial steps. Although officers who never ingested illegal drugs have tested positive on the Hair Test, and although a disproportionate number of officers and applicants of color are being adversely affected by the Hair Test in the terms and conditions of their employment, the defendants will not suspend or modify its use in making employment decisions.
46. The BPD has denied "that race, specifically African-American, is a factor in drug testing results and can cause a positive drug test result [on the Hair Test]." The BPD also refuses to acknowledge that hair samples used in the Hair Test may be contaminated from external exposure, as might occur, for example, during the performance of job duties; as a result of unsanitary collection, transmission, preparation, or testing procedures; or because of errors in the chain of custody.
47. The defendants afford no meaningful opportunity for an officer or applicant who 13
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allegedly tests positive on the Hair Test to prove his or her innocence with respect to alleged illegal drug use. Despite scientific evidence demonstrating the unreliability of procedures used to test hair samples for the presence of illegal drugs and the hair drug test's inherent bias against people of color, the BPD refuses to consider independent test results that refute the Hair Test results and to give sufficient credence and weight to the affected officer's or applicant's record, even when the record strongly negates the possibility ofillegal drug use.
48. The Hair Test used by the defendants is discriminatory in its nature and its effect and has had, and continues to have, a disparate, adverse, and discriminatory impact on police officers and applicants of color. Because of this discrimination, a hostile work enviromnent for people of color has been created by and within the BPD.
49. Upon information and belief, alternative testing methods and procedures exist that would have less disparate, adverse, and discriminatory impact on officers and applicants of color in the terms and conditions of their employment, but the defendants have failed and refused to utilize them.
50. As a consequence of the defendants' policies, customs, practices, and conduct with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test, the plaintiffs have been stripped of their livelihoods; suffered the loss of compensation, benefits, seniority, and opportunities for employment and promotion; seen their reputations and careers destroyed; and endured humiliation, loss of standing in the community, and extreme emotional distress.
Count I
Violation of 42 U.S.C. § 2000e, et seq. and Mass. Gen. Laws. ch. 151B
(Discrimination on the Basis of Race) 51. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 52. Plaintiffs are members of a class protected by 42 U.S.C. § 2000e and Mass. Gen. Laws. ch. !SIB and are qualified for employment by the BPD. 53. As alleged above, the plaintiffs have satisfied the necessary administrative
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prerequisites to the filing of a civil action asserting claims arising under 42 U.S.C. § 2000e and Mass. Gen. Laws. ch. 151B.
54. As alleged above, the defendants have failed and refused to (a) give any meaningful consideration to independent test results that show the affected officer or applicant to be drug-free at the time the Hair Test yielded a false positive result or to service records that show no indication of illegal drug use; and (b) utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicants of color.
55. As alleged above, the defendants' policies, customs, practices, and conduct (including intentional conduct) with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions constitute unlawful discrimination on the basis of race against the plaintiffs, in violation of 42 U.S.C. § 2000e and Mass. Gen. Laws. ch. 151B and also constitute part of the defendants' pattern and practice of discrimination on the basis of race, including but not limited to the following: (a) the use of a mandatory drug test (the Hair Test) that discriminates against employees and applicants on the basis of race; (b) the creation of a hostile work environment for people of color; (c) the disparate, adverse, and discriminatory alteration of the terms and conditions of the plaintiffs' employment; (d) the harassment of the plaintiffs based on race; and (e) the failure and refusal to utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicants of color in the terms and conditions oftheir employment.
56. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' policies, customs, practices and conduct, for which the defendants are liable under the provisions of 42 U.S.C. § 2000e and Mass. Gen. Laws. ch. 151B in an amount to be proven at trial, including compensatory and punitive damages, back pay with interest, front pay, sick leave, disability leave, vacation leave, reimbursement for all lost compensation, seniority, Social Security, pre-judgment interest, and all other entitlements and
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emoluments provided by 42 U.S.C. § 2000e and Mass. Gen. Laws. ch. 151B. Count II
Violation of 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 93, § 103 ((Discrimination on the Basis of Race)
57. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 58. Plaintiffs are members of a class protected by 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 93, § 103. 59. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, practices, and conduct (including intentional conduct) concerning the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions. 60. As alleged above, the defendants have a policy, custom, and practice of failing and refusing to (a) give any meaningful consideration to independent test results that show the affected officer or applicant to be drug-free at the time the Hair Test yielded a false positive result or to service records that show no indication of illegal drug use; and (b) utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicants of color. 61. As alleged above, the defendants' policies, customs, practices, and conduct (including intentional conduct) constitute unlawful discrimination on the basis of race against the plaintiffs with respect to (a) the making, performance, modification, and termination of contracts; (b) the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship; and (c) the enjoyment of the full and equal benefit of all laws as enjoyed by white citizens, as guaranteed by 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 93, § 103. 62. As alleged above, the defendants' policies, customs, practices, and conduct (including intentional conduct) has, among other things, damaged the good names, reputations, honor, and integrity of the plaintiffs; lowered the plaintiffs' standing in the community; deprived
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the plaintiffs' of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
63. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' policies, customs, practices, and conduct, for which the defendants are liable under the provisions of 42 U.S.C. § 1981 and Mass. Gen. Laws ch. 93, § 103 in an amount to be proven at trial, including compensatory and punitive damages in the full amount permitted by law.
Count III Violation of 42 U.S.C. § 1983 and the Fourteenth Amendment Equal Protection Clause
(Discrimination on the Basis of Race) 64. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 65. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, and practices, and conduct (including intentional conduct) concerning the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions. 66. As alleged above, the defendants have a policy, custom, and practice of failing and refusing to (a) give any meaningful consideration to independent test results that show the affected officer or applicant to be drug-free at the time the Hair Test yielded a false positive result or to service records that show no indication of illegal drug use; and (b) utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicants of color in the terms and conditions of their employment, as compared with other, similarly situated BPD employees and applicants. 67. As alleged above, the defendants' policies, customs, practices, and conduct concerning the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions constitutes intentional discrimination on the basis of race against the plaintiffs, in violation of 42 U.S.C. § 1983 and the Fourteenth
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Amendment Equal Protection Clause. 68. As alleged above, the defendants' policies, customs, practices, and conduct have,
among other things, damaged the good names, reputations, honor, and integrity of the plaintiffs; lowered the plaintiffs' standing in the conununity; deprived the plaintiffs of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
69. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' policies, customs, practices, and conduct, for which the defendants are liable under the provisions of 42 U.S.C. § 1983 in an amount to be proven at trial.
Count IV Violation of 42 U.S.C. § 1983 and the Fourteenth Amendment
(Due Process) 70. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 71. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, and practices concerning the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions. 72. As alleged above, the Hair Test used by the defendants to screen BPD officers and applicants for illegal drug use is, flawed, unreliable, imprecise, arbitrary, and inherently biased against people of color -- i.e., the Hair Test has a propensity to yield false positives on hair samples taken from persons of color. 73. As alleged above, the defendants have a policy, custom, and practice of failing and refusing to (a) give any meaningful consideration to independent test results that show the affected officer or applicant to be drug-free at the time the Hair Test yielded a false positive result or to service records that show no indication of illegal drug use; and (b) utilize alternative methods and procedures with respect to drug testing and its use in making employment decisions that would have less disparate, adverse, and discriminatory impact on officers and applicants of color in the terms and conditions of their employment. 74. As alleged above, the defendants' policies, customs, practices, and conduct are
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arbitrary and capricious in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment Due Process Clause.
75. As alleged above, the defendants' policies, customs, practices, and conduct have deprived the plaintiffs of a fair opportunity to have evidence considered that indicates that they were drug free at the time of the Hair Test that resulted in the defendants' adverse employment decisions against them, in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment Due Process Clause.
76. As alleged above, the defendants' policies, customs, practices, and conduct have, among other things, damaged the good names, reputations, honor, and integrity of the plaintiffs; lowered the plaintiffs' standing in the community; deprived the plaintiffs' of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
77. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' policies, customs, practices, and conduct, for which the defendants are liable under the provisions of 42 U.S.C. § 1983 in an amount to be proven at trial.
CountY Violation of 42 U.S.C. § 1983 (Failure to Train and Supervise) 78. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 79. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, and practices concerning the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions. 80. At all relevant times, the defendants were and are responsible for, among other things, the training and supervision of personnel charged with administering and performing the procedures involved in the Hair Test and were and are obligated by law to ensure that the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions (including the defendants' policies, customs, and practices concerning the foregoing) are consistent with the Constitution and laws of the United States.
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81. As alleged above, the defendants' policies, customs, practices, and conduct have deprived the plaintiffs of rights guaranteed by 42 U.S.C. § 1983, 42 U.S.C. § 1981, 42 U.S.C. § 2000e, U.S.C. § 12112, and the Fourteenth Amendment to the United States Constitution, and the defendants have acted with deliberate indifference to the defendants' deprivations of the plaintiffs' constitutional and statutory rights.
82. As alleged above, the defendants' policies, customs, practices, and conduct have, among other things, damaged the good names, reputations, honor, and integrity of the plaintiffs; lowered the plaintiffs' standing in the community; deprived the plaintiffs' of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
83. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' policies, customs, practices, and conduct, for which the defendants are liable under the provisions of 42 U.S.C. § 1983 in an amount to be proven at trial.
Count VI Violation of 42 U.S.C. § 12101, et seq., Mass. Gen. Laws ch. 151B
Mass. Gen. Laws ch. 93, § 103, and Article of Amendment 114 to the Massachusetts Declaration of Rights (Disability Discrimination)
84. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 85. Plaintiffs are members of a class protected by 42 U.S.C. §§ 12102(2), 12111(8), 12112, and 12114; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103, and Article of Amendment 114 to the Massachusetts Declaration of Rights, and able to perform the essential functions of their jobs without accommodation. 86. As a consequence of the plaintiffs' allegedly positive Hair Test results, the defendants falsely and erroneously regarded the plaintiffs as having a disability that substantially limited a major life activity, even though the plaintiffs had no such disability and were able to perform the essential functions oftheir jobs without accommodation. 87. As a consequence of the plaintiffs' allegedly positive Hair Test results, the defendants treated the plaintiffs in a disparate, adverse, and discriminatory manner - as
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compared with other BPD employees and applicants for employment- on the basis of the defendants' false and erroneous perception that the plaintiffs had a disability that substantially limited a major life activity, even though the plaintiffs had no such disability.
88. As a result of the Hair Test, the defendants terminated or denied employment to the plaintiffs on the basis of the defendants' false and erroneous perception of a disability, even though the plaintiffs had no such disability.
89. As alleged above, the defendants' conduct has deprived the plaintiffs of their right to be free from discrimination on the basis of disability as guaranteed by 42 U.S.C. § 12112, Mass. Gen. Laws ch. 151B, Mass. Gen. Laws ch. 93, § 103, and Article of Amendment 114 to the Massachusetts Declaration of Rights.
90. As alleged above, the defendants' conduct has, among other things, (a) interfered with the plaintiffs' contractual rights; (b) deprived the plaintiffs of their rights with respect to the enjoyment of the full and equal benefit of all laws as enjoyed by white citizens; (c) damaged the good names, reputations, honor, and integrity of the plaintiffs; (d) lowered the plaintiffs' standing in the community; (e) deprived the plaintiffs' of employment and related compensation and benefits; and (f) foreclosed employment opportunities for the plaintiffs.
91. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' conduct, for which the defendants are liable under the provisions of 42 U.S.C. § 12112, Mass. Gen. Laws ch. 151B, Mass. Gen. Laws ch. 93, § 103, and Article of Amendment 114 to the Massachusetts Declaration of Rights in an amount to be proven at trial, including compensatory and punitive damages to the full extent permitted by law.
CountVll Violation of Mass. Gen. Laws. ch.12, §§ 11H, 111 and Rights Guaranteed by Massachusetts and Federal Law 91. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 92. At all relevant times, the defendants acted under color of state law with respect to their policies, customs, and practices concerning the implementation, execution, administration,
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supervision, related training, and use of the Hair Test in making employment decisions. 93. As alleged above, the defendants' policies, customs, practices, and conduct have
deprived the plaintiffs of rights guaranteed by Mass. Gen. Laws. ch. 12, §§ llH, lll, 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103; and Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration of Rights.
94. As alleged above, the defendants have used or attempted to use threats, intimidation, and coercion in interfering with, attempting to interfere with, and depriving the plaintiffs of rights guaranteed by Mass. Gen. Laws ch. 12, §§ llH and Ill ; 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103; and Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration of Rights.
95. As alleged above, the defendants' policies, customs, practices, and conduct have, among other things, damaged the good names, reputations, honor, and integrity of the plaintiffs; lowered the plaintiffs' standing in the community; deprived the plaintiffs' of employment and related compensation and benefits; and foreclosed employment opportunities for the plaintiffs.
96. As alleged above, the plaintiffs have suffered and continue to suffer injuries and damages as a result of the defendants' conduct in violation of Mass. Gen. Laws ch. 12, §§ llH and 111; 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12111; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103; and Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration of Rights, for which the defendants are liable under the provisions of Mass. Gen. Laws. ch. 12, §§ 11H and 111 in an amount to be proven at trial.
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Count VIII Declaratory Judgment, Mass. Gen. Laws ch. 231A 97. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 98. As alleged above, there is an actual controversy between the plaintiffs and the defendants concerning the lawfulness of the defendants' policies, customs, practices, and conduct with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions. 99. Pursuant to Mass. Gen. Laws ch. 231A, § 1, the plaintiffs are entitled to a declaratory judgment stating that the defendants have violated rights guaranteed them by 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. !SIB; Mass. Gen. Laws ch. 93, § 103; Mass. Gen. Laws ch. 12, §§ 11H and Ill; Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration of Rights. 100. The plaintiffs also are entitled to further relief as may be warranted under Mass. Gen. Laws ch. 231A, § S.
Count IX Permanent Injunction 101. Plaintiffs repeat and re-allege the facts contained in the foregoing paragraphs. 102. The defendants' policies, customs, practices, and conduct with respect to the implementation, execution, administration, supervision, related training, and use of the Hair Test in making employment decisions is in violation of rights guaranteed to the plaintiffs by 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. !SIB; Mass. Gen. Laws ch. 93, § 103; Mass. Gen. Laws ch. 12, §§ 11H and Ill; Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration of Rights. 103. Absent the granting of permanent injunctive relief, enjoining the defendants' unlawful policies, customs, practices, and conduct, the plaintiffs will continue to be irreparably
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harmed by said unlawful policies, customs, practices, and conduct, for which there IS no
adequate remedy at law.
PLAINTIFFS DEMAND A JURY TRIAL ON ALL ISSUES SO TRIABLE
WHEREFORE, plaintiffs pray that this Court:
(a) enter judgment against the defendants and in favor of the plaintiffs on all counts ofthe Complaint;
(b) enter judgment against the defendants declaring that the policies, customs, practices, and conduct set forth in this Complaint are in violation of 42 U.S.C. § 2000e; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. §§ 12112; the Fourteenth Amendment to the United States Constitution; Mass. Gen. Laws ch. 151B; Mass. Gen. Laws ch. 93, § 103; Mass. Gen. Laws ch. 12, §§ 11H and 111; Articles 1, 10, 11, and 12 of, and Article of Amendment 114 to, the Massachusetts Declaration of Rights;
(c) issue a permanent injunction enjoining the defendants from further violating the plaintiffs' rights asserted in this Complaint;
(d) order the defendants to make the plaintiffs whole by providing appropriate back pay with interest, front pay, sick leave, disability leave, vacation leave and reimbursement for all lost compensation and benefits, Social Security, prejudgment interest, seniority, and all other entitlements and emoluments in an amount to be proven at trial and to take other affrrmative steps immediately to eliminate the effects of the discriminatory and otherwise unlawful policies, customs, practices, and conduct set forth in this Complaint;
(e) order the defendants inunediately to (i) reinstate the plaintiffs, with seniority and with all required adequate protective measures in place, to the positions that they would now occupy but for the defendants' unconstitutional and otherwise unlawful policies, customs, practices, and conduct; and (ii) adjust the plaintiffs' wage rate, salary, bonuses, seniority, and benefits to the levels that they would enjoy but for said unconstitutional and otherwise unlawful policies, customs, practices, and conduct;
(t) award the plaintiffs compensatory and punitive damages to the full extent permitted by law;
(g) award the plaintiffs reasonable attorneys' fees, costs, and expenses incurred in pursuing this action to the full extent permitted by law;
(h) retain jurisdiction over this action until the defendants have fully complied with the orders of this Court and require the defendants to file such reports as is necessary to supervise such compliance; and
(i) grant such other, further relief that the Court deems just and proper.
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Nadine Cohen, BBO # 090040 Lawyers' Committee for Civil Rights
Under Law ofthe Boston Bar Association 294 Washington Street, Suite 443 Boston, Massachusetts 021 08 (617) 482-1145

Respectfully submitted, Ronnie Jones, Richard Beckers, Walter Washington, William Earl Bridgeforth, Shawn N. Harris, Eugene Wade George C. Downing, Jr., Clararise Bristow, Rachelle Couch, Keri Hogan, and the Massachusetts Association of Minority Law Enforcement Officers,
By their attorneys,
Is/ Rheba Rutkowski Paul Robertson, BBO # 562421 Rheba Rutkowski, BBO # 632799 Rachael Splaine Rollins, BBO # 641972 BINGHAM McCUTCHEN LLP 150 Federal Street Boston, MA 02110 (617) 951-8000

Maricia Woodham, BBO # 600886 SABEL & SABEL, P.C. Hillwood Office Center 2800 Zelda Road; Ste. 100-5 Montgomery, AL 36106 (334) 271-2770
Dated: April 7, 2006

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 Case: 15C-2a0s1e51:05D-occvu-1m1e8n3t2: -9D3PWPaDgoec:u1menDt 2a6te9 FiFleilde:d1122/2/288/2/10616 PagEen1tryofID22: 6058206
United States Court of Appeals
For the First Circuit
No. 15-2015
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]
Before
Howard, Chief Judge, Selya and Kayatta, Circuit Judges.
Lisa J. Pirozzolo, with whom Jared B. Cohen, Jeffrey S. Olshan, Wilmer Cutler Pickering Hale and Dorr LLP, Iván EspinozaMadrigal, 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,

Case: 15C-2a0s1e51:05D-occvu-1m1e8n3t2: -9D3PWPaDgoec:u2menDt 2a6te9 FiFleilde:d1122/2/288/2/10616 PagEen2tryofID22: 6058206
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.
December 28, 2016

Case: 15C-2a0s1e51:05D-occvu-1m1e8n3t2: -9D3PWPaDgoec:u3menDt 2a6te9 FiFleilde:d1122/2/288/2/10616 PagEen3tryofID22: 6058206
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.
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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 factfinder 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.
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The results were negative for over 99% of the white individuals tested and over 98% 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
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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. Discussion Ruling on a motion for summary judgment, the district court was required to assume that any disputes of material fact-including conflicting opinions offered by competent experts--could be resolved by the jury in the Officers' favor. See CortésIrizarry v. Corporación Insular de Seguros, 111 F.3d 184, 191 (1st Cir. 1997). On appeal, we must also so assume, see Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 153 (1st Cir. 2009), and we consider the summary judgment ruling de novo, Martinez v. Petrenko, 792 F.3d 173, 179 (1st Cir. 2015). A. Job-Relatedness and Consistency with Business Necessity We consider first whether a reasonable jury could find that the Department's use of the hair drug test to terminate or suspend officers was "job related . . . and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). The parties
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agree that "abstention from drug use is an important element of police officer behavior," and is thus job related. The Officers also quite understandably concede that selecting police officers for retention or discharge based on that job-related behavior is consistent with business necessity. The pivotal question, therefore, is whether a reasonable jury could nonetheless find that the hair drug test as used by the Department was so unreliable that its use did not meaningfully further the Department's legitimate need for a drug-abstaining police force. See Jones I, 752 F.3d at 54 (suggesting that the hair test would have to be "so unreliable that its results have no significant correlation with drug use"); see also Lopez, 823 F.3d at 111 ("[A] selection practice is valid if it materially enhances the employer's ability to pick individuals who are more likely to perform [their jobs] better than those not picked." (emphasis added)).
Certainly, the evidence would allow a reasonable jury to find that the hair test as employed by the Department was not 100% reliable because (according to the Officers' experts) it could not always distinguish between ingestion of drugs and contamination of the hair by environmental exposure to drugs. The Officers' experts further testified that this inability to distinguish unerringly between ingestion and exposure could well have caused the disparate impact because, at the margins, black hair, especially if damaged by some cosmetic treatments more commonly used by black
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individuals, is more likely to absorb and retain contaminants to which the hair might be exposed.
So far, so good for the Officers. The problem, though, is that a finding that all of the test's few positive results might not have accurately distinguished between ingestion and exposure logically falls short of establishing that using the test to move towards a drug-abstaining police force did not further the Department's important needs. To evaluate the reliability of the hair drug test in this context, one must consider the test as a whole and the relative numbers of errors among both the positive and negative results.
The Department employs thousands of officers. It would like to know which officers abstain from drug use and which do not. As best the record reveals--and no party argued otherwise to the district court--the negative hair test results were all accurate. This means that the hair test was accurate in the overwhelming majority of cases, reliably confirming that almost all officers, irrespective of race, very likely abstained from using the tested-for drugs within as many as ninety days prior to the test. This undisputed high degree of accuracy is far beyond what we have recently and repeatedly indicated satisfies the employer's burden of proving that a challenged employment practice furthers an important need of the employer. See Jones I, 752 F.3d at 54; see also Lopez, 823 F.3d at 111. It also eliminates any
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reason to look at the technical guidance for assessing job relatedness promulgated by the EEOC. See Lopez, 823 F.3d at 112.
Of course, unless the test was 100% accurate at distinguishing exposure from ingestion, obtaining a drugabstaining police force in this manner could well have been unfair to some of the few officers who received positive results.1 As we will discuss, this potential unfairness was the focus of a state administrative "just cause" adjudication. The second prong of the disparate impact inquiry, though, focuses only on the reliability of the test in meeting the employer's needs. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975). And as we have previously stated, see Lopez, 823 F.3d at 119, there is no reason why a test need be anything near 100% reliable (few tests are) to be consistent with business necessity (keeping in mind that the presence of an alternative method that would have had less of a disparate impact will still be relevant under the third prong of the inquiry).
Notwithstanding the foregoing reasoning, the Officers argue that a ruling in 2013 by the Massachusetts Civil Service Commission ("MCSC") collaterally precludes the Department from claiming that the hair test was job related and consistent with business necessity. In that ruling, the MCSC overturned most (but
1 The Officers do not claim that all of the positive results were inaccurate.
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not all) of the Officers' dismissals, determining that a positive hair test was insufficiently reliable by itself to establish just cause for termination by a preponderance of the evidence. Both the Massachusetts Superior Court, see Bos. Police Dep't v. Civil Serv. Comm'n, Nos. 13-1250-A & 13-1256-A, slip op. at 20–21 (Mass. Super. Ct. Oct. 6, 2014), and the Massachusetts Court of Appeals, see Thompson v. Civil Serv. Comm'n, 59 N.E.3d 1185, 1190 (Mass. App. Ct. 2016), have since affirmed the MCSC's conclusions regarding the reliability of the positive results generated by the hair drug test.
We review the applicability vel non of issue preclusion de novo. Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 978 (1st Cir. 1995). A party advocating for issue preclusion must show (among other things) that "the issues raised in the two actions are the same" and "the determination of the issue was necessary to that judgment." Manganella v. Evanston Ins. Co., 700 F.3d 585, 591 (1st Cir. 2012). "The identity of the issues need not be absolute; rather, it is enough that the issues are in substance identical." Id. (citing Montana v. United States, 440 U.S. 147, 155 (1979)).
The issue before the MCSC was whether a positive test result by itself was just cause for terminating a tenured public employee. That is simply not an issue in this case. The Officers nevertheless point out that the MCSC made a subsidiary finding
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that the positive results failed to show that drug ingestion was more likely than not. There is nothing in this finding, though, that conflicts with the district court's central conclusion that use of the hair drug test furthered the Department's legitimate need to have a police force comprised of officers who abstain from using the tested-for drugs. Indeed, the MCSC expressly stated that the test "has a legitimate place in narrowing down which of its few officers may reasonably be suspected of abusing illicit drugs." This statement supports, rather than precludes, the district court's conclusion that the use of the drug test furthered a significant employer need. The MCSC parted company with the district court only to the extent that the MCSC was required to ask a further question not germane to the district court's inquiry, i.e., whether a reasonable suspicion of illicit drug use was "just cause" for terminating a tenured public employee.
We therefore agree with the district court that the record in this case (even including the MCSC's findings) renders unreasonable any claim that the Department has not proved that its use of the hair test was job related and consistent with business necessity. B. Refusal to Adopt Available Alternative that Would Have Met
Employer's Legitimate Needs with Less Disparate Impact Our conclusion that a reasonable jury would have to find
that the hair drug test was job related and consistent with
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business necessity does not mean that it was necessarily lawful to use the disparately impactful test. Rather, it brings us to the third and final prong of the disparate impact liability inquiry: whether the evidence could support a jury finding that the Department nevertheless "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), (C)). Application of this prong in this case turns on the answers to three questions: First, does the record contain evidence that would allow a jury to find that there was an "alternative" method of meeting the Department's legitimate needs? Second, does the record also allow a jury to find that adopting that alternative method would have had less of a disparate impact? And finally, could a jury find that the Department "refuses to adopt" that alternative method? We consider each question in turn.
1. Could a reasonable jury find that an alternative drug-testing method would have met the Department's legitimate needs?
With relatively little explanation or elaboration, the Officers' opening brief offers four proposed alternatives to the hair drug test, only one of which it subsequently contends the Department refused to adopt even though it would have been equally effective in meeting the Department's needs and less disparately impactful. The parties refer to that alternative as "hair testing
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plus urinalysis." By this, the Officers mean the following: first, administer the hair test to all officers (which will clear over 98% of the individuals tested); then, administer a follow-up series of random urinalysis tests only to those officers who receive positive results on the hair test; and discharge (or suspend, pending rehabilitation and further drug testing) only those who flunk one of the follow-up random urinalysis tests.2
This approach would have fully replicated the results of the hair test alone except, a jury might find, it would have cleared those who received a positive hair test yet were likely not using cocaine. And if the urinalysis tests continued randomly over the course of more than ninety days, they would have confirmed

2 The district court found that the Officers failed to show

that use of urinalysis testing in lieu of hair testing would have

sufficed. Urinalysis detects only very recent cocaine use (within

two days), whereas hair testing detects cocaine use for a much

longer period (within as many as ninety days). If urinalysis were

administered frequently enough to all officers, it might be

prohibitively expensive. See Watson v. Fort Worth Bank & Tr., 487

U.S. 977, 998 (1988) (plurality opinion) ("Factors such as the

cost or other burdens of proposed alternative selection devices

are relevant in determining whether they would be equally as

effective as the challenged practice in serving the employer's

legitimate business goals.").

Particularly if it were

administered on thousands of occasions, urinalysis might be easier

to tamper with. And as a more intrusive test (especially if done

in a manner that avoids tampering), its use without individualized

suspicion might well be legally problematic. See Guiney v. Police

Comm'r, 582 N.E. 2d 523, 526–27 (Mass. 1991). The Officers concede

little of the foregoing, but nevertheless do not press on appeal

the substitution of urinalysis as an alternative to hair testing.

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a period of drug abstention equal to that confirmed by a negative hair test.
Would this alternative have equally met the Department's needs? A reasonable jury might so find. Keep in mind that the Department already used a series of negative urinalysis tests as a basis to reinstate suspended officers who tested positive on the hair test: officers who tested positive on the hair test under the challenged practice could choose to admit to drug use; receive a forty-five day unpaid suspension; undergo drug rehabilitation; and submit to frequent, random urinalysis for three years. The only difference between the challenged practice and the proposed "hair testing plus urinalysis" alternative is that firing (or suspension and drug rehabilitation) preceded the urinalysis testing in the actual regime, whereas no change in employment status would have occurred until after urinalysis confirmation in the alternative scheme. Additionally, Department policy has long permitted supervisors with a reasonable suspicion that an officer is using drugs to order urinalysis screening of that officer. That the Department used urinalysis in these scenarios--where officers had already tested positive for drugs or were reasonably suspected of using drugs--naturally suggests that the Department viewed random urinalysis as an acceptably reliable method for detecting
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drug use on a targeted (rather than mass) basis.3 To the extent that a concern with urinalysis is its manipulability, a jury could find that the more frequent and randomized nature of the Officers' proposed urinalysis program would have sufficiently minimized such a concern.4
Crucially, the alternative would have retained the main benefit of the challenged drug testing program: using a relatively unintrusive, easy-to-supervise hair test to generate the negative results that confirm that almost all officers, regardless of race, do not use illegal drugs. All in all, we think that this is a close enough call that a jury could conclude that the Officers' proffered alternative equally would have met the Department's needs. Indeed, if a jury believed the thrust of the Officers' evidence, it might conclude that the alternative test method would have saved the Department from losing several veteran officers who were not using cocaine.
3 Similarly, while it may be within the scope of inquiry to consider the putative costs of the Officers' proposed alternative, see Watson, 487 U.S. at 998 (plurality opinion), a reasonable jury could find that there would have been no material cost differential, especially given that the Department had shown a willingness to assume those costs by virtue of the rehabilitation option that it offered (and continues to offer) to all officers who tested positive on the hair test.
4 We note that the challenged hair test program itself was not intended to catch all use of illegal drugs. Rather, the aim was to ensure that there was at least a sixty- to ninety-day period of abstention.
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2. Could a reasonable jury find that the alternative would have generated less of a disparate impact?
In Jones I, we observed that "[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, except where the alternative is self-evidently incapable of causing a differential." 752 F.3d at 53. The Department reads this statement as always requiring a new, large-sample statistical analysis that specifies the precise impact of an alternative practice. We reject this overly narrow reading of the manner by which statistical evidence can be marshalled. Rather, the plaintiff in some situations can use the statistically determined impact of the challenged process as a baseline, and demonstrate that the alternative practice must necessarily be less. Suppose, for example, that an employer selected job applicants by height, creating a disparate gender impact revealed through a large-sample statistical analysis. If the proposed alternative were to use a random selection tool (such as a coin flip), it would be selfevident that the impact would be less; hence, there would be no need for actually running the numbers through a new analysis.
Here, if the jury were to believe the Officers and their experts rather than the Department and its experts, it would be
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self-evident that the "hair testing plus urinalysis" alternative would have generated less of a disparate impact than that revealed by the large-sample statistical analysis of the hair drug test results. The jury could find that the hair test alone can generate false positives for some black individuals, that black individuals have no greater likelihood of receiving a false positive result from urinalysis than do white individuals,5 and that the Officers (who swear that they did not use cocaine) more likely than not received false positive results that urinalysis would have identified as such. Given such findings, the alternative would necessarily have resulted in the termination of a lower ratio of black officers to white officers. That is, because the statistical analysis of the challenged practice shows an overall disparate impact of X, where the number of black officers with positive results was Y, a reduction in Y alone would necessarily have resulted in an overall disparate impact of less than X.
None of this is to say that the jurors must so find. The jury could conclude, for example, that the hair test as administered by the Department did not generate false positives based on race, and hence, that the alternative would not have had a lesser disparate impact. The point is that, though the evidence is conflicting, the mathematical import of either conflicting view
5 This point is undisputed.
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is self-evident. A jury could therefore find that the Officers' proposed alternative would have had less of a disparate impact than that resulting from the challenged practice.
3. Could a reasonable jury find that the Department "refuses" to adopt the alternative?
Title VII requires as an element of a successful disparate impact claim a finding that "the [employer] refuses to adopt such alternative employment practice." 42 U.S.C. § 2000e2(k)(1)(A)(ii). This language is susceptible to a number of different readings. Does an employer only "refuse to adopt" an alternative practice if the employer knows it will meet its needs and have less of a disparate impact? If this were a correct reading, then a finding for plaintiffs on the third prong of the disparate impact inquiry would effectively constitute a finding of intentional discrimination. Cf. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660-61 (1989) (observing that a refusal to adopt an alternative "would belie a claim by petitioners that their incumbent practices are being employed for nondiscriminatory reasons"), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074; Albemarle Paper Co., 422 U.S. at 425 ("Such a showing would be evidence that the employer was using its tests merely as a 'pretext' for discrimination."). As we have previously observed, however, "proof of a disparate impact claim
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requires no proof of intentional discrimination." Jones I, 752 F.3d at 50; see also Ricci, 557 U.S. at 583.
Other possible readings of the statute remain. Is it enough that the alternative was available and not used, or must its availability have been known? Must it be specifically proposed, like a dinner special at a restaurant, or is it enough that it was on the known menu of options and not selected? What are we to make of the statute's use of the present tense ("refuses")? The parties provide no express discussion of these nuances. Indeed, their briefs contain no acknowledgement that there are meaningfully different possible readings of the statutory text. The only cases upon which the Officers rely are the Seventh Circuit's decisions in Adams v. City of Chicago, 469 F.3d 609 (7th Cir. 2006), and Allen v. City of Chicago, 351 F.3d 306 (7th Cir. 2003). The Department, too, urges us to follow the Seventh Circuit, pointing specifically to Allen. The formulation employed in Allen and repeated in Adams is that "the statutory scheme requires plaintiffs to demonstrate a viable alternative and give the employer an opportunity to adopt it." Adams, 469 F.3d at 613 (quoting Allen, 351 F.3d at 313). Adams elsewhere seems to suggest that the employer is given an opportunity to adopt the alternative if the employer "had an opportunity" to adopt it, see id. at 613, 616, and that such an "opportunity" existed if the
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alternative was "available," see id. at 614, and the employer was free to adopt it, see id. at 615 n.4.
Confronted with the limited briefing on point, and the parties' consensus in pointing to Seventh Circuit precedent, we will follow the path of Allen and Adams by default (rather than by decision). We asked at oral argument whether there was evidence in the record that the "hair testing plus urinalysis" alternative was available to the Department at a time relevant to this lawsuit. The Officers' counsel directed us only to the fact that in 2003, they gave the Department an affidavit signed by their expert, Dr. Kidwell, proposing the alternative. This affidavit by Dr. Kidwell is the same evidence on which plaintiffs relied in the district court. The affidavit appears to be an expert disclosure detailing Dr. Kidwell's opinions on hair testing as well as "more enlightened approach[es] to drug testing," which include hair testing followed by random, frequent urinalysis. It is dated June 3, 2003. Plaintiffs' "Additional Statement of Material Facts" states that "[a]s early as 2003, Dr. Kidwell suggested alternative methods" of testing for drug use to the Department, pointing to this affidavit as evidence of the fact. The Officers make no claim that the alternative was otherwise "available" before Dr. Kidwell proposed it. Exactly when in 2003 the suggestion was made is not revealed. We infer that it was when the affidavit was served on the Department's counsel sometime that year. In any event, the
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affidavit does indeed propose that the Department could use what we refer to as the "hair testing plus urinalysis" alternative.
Accordingly, we agree with the Officers that the summary judgment record reveals a material dispute of fact concerning whether, sometime in 2003, the Department, by continuing to administer the challenged hair test, "necessarily . . . refused to adopt" the alternative made available to it by the suggestion of Dr. Kidwell. See Ricci, 557 U.S. at 589. The parties appear to agree that some (but not all) of the Officers were selected for termination or suspension after Dr. Kidwell submitted his affidavit to the Department in 2003. Those Officers, but not the others, could succeed at trial under the third prong of the disparate impact inquiry. Precisely which Officers' claims survive based on this timeline can be determined in the district court on remand.
III. Conclusion In sum, we affirm the district court's ruling on summary judgment that the Department's use of the hair test was job related and consistent with business necessity, but we vacate the district court's grant of summary judgment to the Department on the third prong of the disparate impact inquiry. The record contains sufficient evidence from which a reasonable factfinder could conclude that hair testing plus a follow-up series of random urinalysis tests for those few officers who tested positive on the
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Case: 15C-2a0s1e51:05D-occvu-1m1e8n3t2: -9D3PWPaDgoec:u2m2ent D26a9te FFiilleedd: 1122//2288//126016PageE2n2tryofID22: 6058206 hair test would have been as accurate as the hair test alone at detecting the nonpresence of cocaine metabolites while simultaneously yielding a smaller share of false positives in a manner that would have reduced the disparate impact of the hair test. We also think that, on the present record, a reasonable factfinder could conclude that the Department in 2003 refused to adopt this alternative. 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 shifted in favor of a finally prevailing party under any applicable statute.
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 Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 1 of 72
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:05−cv−11832−DPW

Jones, et al. v. City of Boston, Boston Police Department, et al. Assigned to: Judge Douglas P. Woodlock Case in other court: Suffolk Superior Court, 05−03123
First Circuit, 12−02280
USCA − First Circuit, 15−02015 Cause: 42:2000 Job Discrimination (Race)
Plaintiff

Date Filed: 09/09/2005 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Ronnie Jones

represented by Elizabeth M. Bresnahan Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8638 Email: elizabeth.bresnahan@morganlewis.com TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski Federal Public Defender Office District of Massachusetts 51 Sleeper Street 5th Floor Boston, MA 02210 617−223−8061 Email: rheba_rutkowski@fd.org TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis A. Rodriques Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8340 Fax: 617−951−8736 Email: louis.rodriques@morganlewis.com TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maricia D. Woodham Sabel & Sabel 2800 Zelda Road Suite 100−5 Montgomery, AL 36106 334−271−2770 Fax: 334−277−2882 Email: mwoodham@sabellaw.com TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ming M Zhu Latham & Watkins LLP 140 Scott Drive Menlo Park, CA 94025 650−328−4600 Email: ming.zhu@lw.com

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 2 of 72
TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine M. Cohen Lawyers' Committee for Civil Rights Under Law Suite 443 294 Washington Street Boston, MA 02108 617−482−1145 Fax: 617−482−4392 Email: ncohen@gbls.org TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Robertson Paul M Robertson, Esq. 5 Wood Lane North Andover, MA 01845−0184 (857) 334−6408 Email: paul.robertson@alumni.princeton.edu TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael S. Rollins United States Attorney's Office MA 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3398 Fax: 617−748−3969 TERMINATED: 02/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster City Of Boston Law Department One City Hall Plaza Room 615 Boston, MA 02201 617−632−4042 Email: raquel.webster@cityofboston.gov TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker Securities and Exchange Commission − MA 33 Arch Street 23rd Floor Boston, MA 02110−1424 617−573−8918 Fax: 617−573−4590 Email: bakerr@sec.gov TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris Wilmer Cutler Pickering Hale and Dorr LLP (Bos)

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 3 of 72
60 State Street Boston, MA 02109 617−526−6000 Email: aaron.macris@wilmerhale.com TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6000 Email: alexandra.reynolds@wilmerhale.com TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8792 TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6000 Email: arjun.jaikumar@wilmerhale.com ATTORNEY TO BE NOTICED
Deana K. El−Mallawany US Attorney's Office − MA J. Joseph Moakley U.S. Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3100 ATTORNEY TO BE NOTICED
Doreen M. Rachal United States Attorney's Office MA 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3282 Email: doreen.rachal@usdoj.gov ATTORNEY TO BE NOTICED
Eric A. Heining Bingham McCutchen LLP − MA One Federal Street Boston, MA 02110−1726 617−951−8000 Fax: 617−951−8736 Email: heininge@sec.gov TERMINATED: 11/07/2012 ATTORNEY TO BE NOTICED
Eric D. Wolkoff Wilmer Hale LLP 60 State Street Boston, MA 02109

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 4 of 72
617−526−6337 Email: eric.wolkoff@wilmerhale.com ATTORNEY TO BE NOTICED
Jared B. Cohen Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6916 Email: jared.cohen@wilmerhale.com ATTORNEY TO BE NOTICED
Jeffrey Olshan Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6801 Email: jeff.olshan@wilmerhale.com ATTORNEY TO BE NOTICED
Jenny K. Cooper Ropes & Gray − MA Prudential Tower 800 Boylston Street Boston, MA 02199−3600 617−951−8473 Email: jenny.cooper@ropesgray.com TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
John F. Adkins Lawyers' Committee for Civil Rights and Economic Justic 294 Washington Street Suite 443 Boston, MA 02108 617−951−8551 Fax: 617−345−5060 Email: john.adkins@bingham.com TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED
Kevin S. Prussia Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6243 Fax: 617−526−5000 Email: kevin.prussia@wilmerhale.com ATTORNEY TO BE NOTICED
Laura Maslow−Armand Lawyers Committee for Civil Rights Under Law Suite 443 294 Washington Street Boston, MA 02108 617−988− 0604 Fax: 617−482−4392 Email: laurama@lawyerscom.org ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo Wilmer Hale LLP

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 5 of 72

60 State Street Boston, MA 02109 617−526−6388 Fax: 617−526−5000 Email: lisa.pirozzolo@wilmerhale.com ATTORNEY TO BE NOTICED

Matthew T. Bohenek Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8945 Email: matthew.bohenek@morganlewis.com TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

Nikki J. Fisher Bingham McCutchen LLP − MA One Federal Street Boston, MA 02110−1726 617−951−8294 Fax: 617−951−8736 Email: nikki.fisher@bingham.com TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Oren M. Sellstrom Lawyers' Committee for Civil Rights and Economic Justic Fifth Floor 61 Batterymarch Street Boston, MA 02110 617−988−0608 Email: osellstrom@lawyerscom.org ATTORNEY TO BE NOTICED

William F. Benson Bingham McCutchen LLP One Federal Street Boston, MA 02110−1726 617−951−8000 Fax: 617−951−8736 Email: William.benson@bingham.com TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue Bingham McCutchen LLP − MA One Federal Street Boston, MA 02110−1726 617−951−8263 Email: shuan.lue@bingham.com ATTORNEY TO BE NOTICED

Plaintiff Richard Beckers

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address) TERMINATED: 09/01/2010

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 6 of 72
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maricia D. Woodham (See above for address) TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine M. Cohen (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Robertson (See above for address) TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael S. Rollins (See above for address) TERMINATED: 02/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker (See above for address) TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 7 of 72
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric A. Heining (See above for address) TERMINATED: 11/07/2012 ATTORNEY TO BE NOTICED
Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED
Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED
Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
John F. Adkins (See above for address) TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED
Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED
Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address)

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 8 of 72

ATTORNEY TO BE NOTICED

William F. Benson (See above for address) TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Walter R. Washington

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address) TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maricia D. Woodham (See above for address) TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine M. Cohen (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul M. Robertson (See above for address) TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachael S. Rollins (See above for address) TERMINATED: 02/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 9 of 72
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker (See above for address) TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric A. Heining (See above for address) TERMINATED: 11/07/2012 ATTORNEY TO BE NOTICED
Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED
Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED
Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
John F. Adkins (See above for address) TERMINATED: 03/07/2017

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 10 of 72

ATTORNEY TO BE NOTICED

Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED

Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

William F. Benson (See above for address) TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff William E. Bridgeforth

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address) TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maricia D. Woodham (See above for address) TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ming M Zhu

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 11 of 72
(See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine M. Cohen (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Robertson (See above for address) TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael S. Rollins (See above for address) TERMINATED: 02/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker (See above for address) TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric A. Heining (See above for address) TERMINATED: 11/07/2012

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 12 of 72

ATTORNEY TO BE NOTICED

Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED

Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED

Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

John F. Adkins (See above for address) TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED

Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED

Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

William F. Benson (See above for address) TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shawn N. Harris

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address)

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 13 of 72
TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maricia D. Woodham (See above for address) TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine M. Cohen (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Robertson (See above for address) TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael S. Rollins (See above for address) TERMINATED: 02/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker (See above for address) TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 14 of 72
ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric A. Heining (See above for address) TERMINATED: 11/07/2012 ATTORNEY TO BE NOTICED
Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED
Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED
Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
John F. Adkins (See above for address) TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED
Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED
Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED
Oren M. Sellstrom

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 15 of 72

(See above for address) ATTORNEY TO BE NOTICED

William F. Benson (See above for address) TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Eugene Wade

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address) TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maricia D. Woodham (See above for address) TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine M. Cohen (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul M. Robertson (See above for address) TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachael S. Rollins (See above for address) TERMINATED: 02/26/2007 LEAD ATTORNEY

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 16 of 72
ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker (See above for address) TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric A. Heining (See above for address) TERMINATED: 11/07/2012 ATTORNEY TO BE NOTICED
Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED
Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED
Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
John F. Adkins (See above for address)

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 17 of 72

TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED

Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED

Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

William F. Benson (See above for address) TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff George C. Downing, Jr.

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address) TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maricia D. Woodham (See above for address) TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 18 of 72
Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine M. Cohen (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Robertson (See above for address) TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael S. Rollins (See above for address) TERMINATED: 02/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker (See above for address) TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric A. Heining (See above for address)

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 19 of 72

TERMINATED: 11/07/2012 ATTORNEY TO BE NOTICED

Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED

Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED

Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

John F. Adkins (See above for address) TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED

Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED

Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

William F. Benson (See above for address) TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Clararise Bristow

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 20 of 72
(See above for address) TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maricia D. Woodham (See above for address) TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadine M. Cohen (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Robertson (See above for address) TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael S. Rollins (See above for address) TERMINATED: 02/26/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker (See above for address) TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address)

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 21 of 72
TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric A. Heining (See above for address) TERMINATED: 11/07/2012 ATTORNEY TO BE NOTICED
Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED
Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED
Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
John F. Adkins (See above for address) TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED
Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED
Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 22 of 72

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

William F. Benson (See above for address) TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Massachusetts Association of Minority Law Enforcement Officers

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address) TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maricia D. Woodham (See above for address) TERMINATED: 03/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadine M. Cohen (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul M. Robertson (See above for address) TERMINATED: 07/27/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachael S. Rollins (See above for address) TERMINATED: 02/26/2007

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 23 of 72
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Baker (See above for address) TERMINATED: 09/05/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric A. Heining (See above for address) TERMINATED: 11/07/2012 ATTORNEY TO BE NOTICED
Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED
Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED
Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
John F. Adkins

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 24 of 72

(See above for address) TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED

Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED

Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

William F. Benson (See above for address) TERMINATED: 11/19/2008 ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rachelle Couch

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric A. Heining (See above for address) TERMINATED: 11/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address) TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 25 of 72
Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Benson (See above for address) TERMINATED: 11/19/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED
Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED
Jenny K. Cooper

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 26 of 72

(See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

John F. Adkins (See above for address) TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED

Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED

Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Keri Hogan

represented by Elizabeth M. Bresnahan (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric A. Heining (See above for address) TERMINATED: 11/07/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Rheba Rutkowski (See above for address) TERMINATED: 09/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis A. Rodriques (See above for address) TERMINATED: 11/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ming M Zhu (See above for address) TERMINATED: 10/08/2010 LEAD ATTORNEY

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 27 of 72
ATTORNEY TO BE NOTICED
Nikki J. Fisher (See above for address) TERMINATED: 10/06/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raquel J. Webster (See above for address) TERMINATED: 03/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Benson (See above for address) TERMINATED: 11/19/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Macris (See above for address) TERMINATED: 06/29/2018 ATTORNEY TO BE NOTICED
Alexandra Rueckle Reynolds (See above for address) TERMINATED: 10/15/2019 ATTORNEY TO BE NOTICED
Amanda V. McGee (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Arjun K. Jaikumar (See above for address) ATTORNEY TO BE NOTICED
Deana K. El−Mallawany (See above for address) ATTORNEY TO BE NOTICED
Doreen M. Rachal (See above for address) ATTORNEY TO BE NOTICED
Eric D. Wolkoff (See above for address) ATTORNEY TO BE NOTICED
Jared B. Cohen (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Olshan (See above for address) ATTORNEY TO BE NOTICED
Jenny K. Cooper (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
John F. Adkins

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 28 of 72
(See above for address) TERMINATED: 03/07/2017 ATTORNEY TO BE NOTICED
Laura Maslow−Armand (See above for address) ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo (See above for address) ATTORNEY TO BE NOTICED
Matthew T. Bohenek (See above for address) TERMINATED: 12/22/2014 ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED
Yin−Shuan Lue (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
City of Boston, Boston Police Department

represented by Helen G. Litsas City Of Boston Law Department One City Hall Plaza Room 615 Boston, MA 02201 781−231−8090 Fax: 781−231−8094 Email: helen@litsaslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James M. Chernetsky City of Boston Law Department Boston City Hall Room 615 Boston, MA 02201 617−635−4048 Fax: 617−635−3199 TERMINATED: 11/15/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Mary Buckley City of Boston Police Department Office of the Legal Advisor 1 Schroeder Plaza Boston, MA 02120 617−343−4550 Fax: 617−343−4609 TERMINATED: 02/22/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Jo Harris Morgan, Brown & Joy LLP 200 State Street

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 29 of 72
11th Floor Boston, MA 02109 607−788−5011 Fax: 617−367−3125 Email: mharris@morganbrown.com TERMINATED: 11/29/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael K. Clarkson Ogletree Deakins Nash Smoak & Stewart, P.C. One Boston Place Suite 3500 Boston, MA 02108 617−994−5700 Fax: 617−994−5701 Email: michael.clarkson@ogletreedeakins.com TERMINATED: 02/18/2015 LEAD ATTORNEY
Amy E Condon Bowditch & Dewey, LLP 200 Crossing Boulevard, Suite 300 Framingham, MA 01702 617−757−6522 Fax: 508−872−1492 ATTORNEY TO BE NOTICED
Nicole Murati Ferrer City Of Boston Law Department One City Hall Plaza Room 615 Boston, MA 02201 617−635−4045 Fax: 617−635−3199 ATTORNEY TO BE NOTICED
Nicole I. Taub Boston Police Department One Schroeder Plaza Boston, MA 02120 617−343−4550 ATTORNEY TO BE NOTICED
Sean P. O'Connor Morgan, Brown & Joy LLP 200 State Street 11th Flr. Boston, MA 02109 617−523−6666 Email: soconnor@morganbrown.com TERMINATED: 05/04/2011 ATTORNEY TO BE NOTICED
Susan M. Weise City of Boston Law Department Boston City Hall Room 615 Boston, MA 02201 617−635−4040 Fax: 617−635−3199 Email: susan.weise@cityofboston.gov ATTORNEY TO BE NOTICED

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 30 of 72

Thomas S. Fitzpatrick Davis, Malm & D'Agostine, P.C. One Boston Place Boston, MA 02108 617−367−2500 Fax: 617−523−6215 Email: tfitzpatrick@davismalm.com ATTORNEY TO BE NOTICED

Defendant
Kathleen O'Toole as she is the Commissioner of the Boston Police Department TERMINATED: 10/19/2007

represented by Helen G. Litsas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James M. Chernetsky (See above for address) TERMINATED: 11/15/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Mary Buckley (See above for address) TERMINATED: 02/22/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Jo Harris (See above for address) TERMINATED: 10/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy E Condon (See above for address) ATTORNEY TO BE NOTICED

Nicole Murati Ferrer (See above for address) ATTORNEY TO BE NOTICED

Defendant
Edward Davis Commissioner of the Boston Police Department

represented by Amy E Condon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Helen G. Litsas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Jo Harris Morgan, Brown & Joy LLP 200 State Street 11th Floor Boston, MA 02109 617−523−6666 Fax: 617−367−3125 Email: mharris@morganbrown.com TERMINATED: 11/29/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 31 of 72

Michael K. Clarkson Ogletree Deakins Nash Smoak & Stewart One Boston Place Suite 3220 Boston, MA 02108 617−994−5700 Fax: 617−994−5701 Email: michael.clarkson@ogletreedeakins.com TERMINATED: 02/18/2015 LEAD ATTORNEY

Nicole Murati Ferrer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole I. Taub (See above for address) ATTORNEY TO BE NOTICED

Susan M. Weise (See above for address) ATTORNEY TO BE NOTICED

Witness Psychemedics Corporation

represented by Peter A. Biagetti Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC One Financial Center Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: pbiagetti@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John A. Holland , Jr. Rich May, a Professional Corp. 176 Federal Street Boston, MA 02110 617−556−3879 Email: jaholland@richmaylaw.com TERMINATED: 03/03/2008 ATTORNEY TO BE NOTICED

Meredith M. Leary Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC One Financial Center, 42nd Flr. Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: mleary@mintz.com ATTORNEY TO BE NOTICED

Omar A. Khondker Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC One Financial Center, 42nd Flr. Boston, MA 02111 617−348−1778 Fax: 617−542−2241 Email: okhondker@mintz.com TERMINATED: 01/14/2010

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 32 of 72 ATTORNEY TO BE NOTICED
Mediator Judge Jennifer C. Boal

Date Filed 09/09/2005
09/09/2005 09/14/2005 09/20/2005
09/29/2005 09/30/2005 10/07/2005 10/07/2005 10/07/2005 10/07/2005 10/19/2005
10/24/2005
10/25/2005 11/04/2005

# Docket Text
1 NOTICE OF REMOVAL by City of Boston, Boston Police Department, Kathleen O'Toole from Suffolk Superior Court, case number 05−03123. $ 250, receipt number 66716, filed by City of Boston, Boston Police Department, Kathleen O'Toole. (Attachments: # 1 Civil Cover Sheet # 2 Attached documents)(Edge, Eugenia) (Entered: 09/14/2005)
If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Bowler. (Edge, Eugenia) (Entered: 09/14/2005)
2 MOTION (Without Objection) for Extension of Time to September 30, 2005 to File Response/Reply by City of Boston, Boston Police Department, Kathleen O'Toole. c/s(Edge, Eugenia) (Entered: 09/19/2005)
3 STATE COURT Record City of Boston, Boston Police Department served on 8/20/2005, answer due 9/9/2005; Kathleen O'Toole served on 8/20/2005, answer due 9/9/2005.. (Chernetsky, James) Additional attachment(s) added on 9/28/2005. Pages corrected for proper viewing (Edge, Eugenia). Modified on 9/28/2005 to add text (Edge, Eugenia). (Entered: 09/20/2005)
4 MOTION for Extension of Time to 10/7/05 to File Answer by City of Boston, Boston Police Department, Kathleen O'Toole.(Ambarik, Amy) (Entered: 09/29/2005)
Electronic notice of correction to docket made by Court staff. Attorney Marcia Woodhamn's record modified to permit e−mail notification by the Court's ECF noticing system. (Hurley, Virginia) (Entered: 09/30/2005)
5 ANSWER to Complaint with Jury Demand With Affirmative Defenses by City of Boston, Boston Police Department.(Chernetsky, James) (Entered: 10/07/2005)
6 MOTION to Dismiss by Kathleen O'Toole.(Chernetsky, James) (Entered: 10/07/2005)
7 MOTION to Dismiss by City of Boston, Boston Police Department.(Chernetsky, James) (Entered: 10/07/2005)
8 MEMORANDUM in Support re 7 MOTION to Dismiss filed by City of Boston, Boston Police Department. (Chernetsky, James) (Entered: 10/07/2005)
9 Assented to MOTION for Extension of Time to November 4, 2005 to File Plaintiffs' Response to Motions to Dismiss The Boston Police Department and Commissioner Kathleen O'Toole as Defendants by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Rollins, Rachael) (Entered: 10/19/2005)
Judge George A. O'Toole Jr.: ElectronicORDER entered granting 4 Motion for Extension of Time to Answer City of Boston, Boston Police Department answer due 10/7/2005; Kathleen O'Toole answer due 10/7/2005., granting 9 Motion for Extension of Time (Lyness, Paul) (Entered: 10/24/2005)
10 NOTICE of Scheduling Conference Scheduling Conference set for 1/24/2006 02:00 PM in Courtroom 9 before Judge George A. O'Toole Jr.. Please mark your calendars accordingly.(Lyness, Paul) (Entered: 10/25/2005)
11 Opposition re 7 MOTION to Dismiss, 6 MOTION to Dismiss Plaintiff's Claims Against the Boston Police Department and Commissioner Kathleen O'Toole filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Rollins, Rachael) (Entered: 11/04/2005)

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12/13/2005 01/19/2006 01/20/2006
02/03/2006 02/03/2006 02/06/2006 02/09/2006
04/07/2006 04/07/2006 04/27/2006 06/15/2006 06/22/2006 06/22/2006
06/23/2006 06/23/2006
06/26/2006
06/26/2006

Judge George A. O'Toole Jr.: Electronic ORDER entered finding as moot 2 Motion for Extension of Time to File Response/Reply, denying 6 Motion to Dismiss, denying 7 Motion to Dismiss (Lyness, Paul) (Entered: 12/13/2005)
12 Assented to MOTION to Continue Local Rule 16.1 Scheduling Conference to 2/7/06 Or A Date Permitted By Court's Calendar by City of Boston, Boston Police Department, Kathleen O'Toole.(Chernetsky, James) (Entered: 01/19/2006)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 12 Motion to Continue Scheduling Conference set for 2/9/2006 02:00 PM in Courtroom 9 before Judge George A. O'Toole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 01/20/2006)
13 CERTIFICATE OF CONSULTATION Pursuant to Local Rule 16.1(D)(3) by James M. Chernetsky on behalf of all plaintiffs. (Chernetsky, James) (Entered: 02/03/2006)
14 JOINT STATEMENT re scheduling conference PURSUANT TO FED. R. CIV. P. 26(f) AND LOCAL RULE 16.1. (Chernetsky, James) (Entered: 02/03/2006)
15 CERTIFICATE OF CONSULTATION re 13 Certificate of Consultation Pursuant to Local Rule 16.1(D)(3) by Rheba Rutkowski on behalf of Massachusetts Association of Minority Law Enforcement Officers. (Rutkowski, Rheba) (Entered: 02/06/2006)
ElectronicClerk's Notes for proceedings held before Judge George A. O'Toole Jr.: Scheduling Conference held on 2/9/2006. The court sets a status conference to take the temperature in the case as counsel proceed along with the idea being primarily to the science but to the extent that that requires knowing what happened to single people, aspects of reliability and so on. Status Conference set for 7/10/2006 02:00 PM in Courtroom 9 before Judge George A. O'Toole Jr.. (Court Reporter Shelly Killian.) (Lyness, Paul) (Entered: 02/13/2006)
16 First MOTION to Amend Complaint by Ronnie Jones.(Rutkowski, Rheba) (Entered: 04/07/2006)
17 AMENDED COMPLAINT AND JURY DEMAND against all defendants, filed by Ronnie Jones.(Rutkowski, Rheba) (Entered: 04/07/2006)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 16 Motion to Amend (Lyness, Paul) (Entered: 04/27/2006)
Remark− Pursuant to the scheduling conference on 2/9/06, a status conference is scheduled for Monday, July 10, 2006 at 2:00pm. (Lyness, Paul) (Entered: 06/15/2006)
18 NOTICE of Appearance by Helen G. Litsas on behalf of City of Boston, Boston Police Department, Kathleen O'Toole (Litsas, Helen) (Entered: 06/22/2006)
19 STIPULATION and Agreed Order Concerning Deposition of Kathleen O'Toole by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, City of Boston, Boston Police Department, Kathleen O'Toole, Richard Beckers. (Webster, Raquel) (Entered: 06/22/2006)
20 Joint MOTION to Continue Scheduling Conference by City of Boston, Boston Police Department, Kathleen O'Toole.(Litsas, Helen) (Entered: 06/23/2006)
21 NOTICE of Appearance by Raquel J. Webster on behalf of Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers (Webster, Raquel) (Entered: 06/23/2006)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 20 Motion to Continue Status Conference set for 9/11/2006 02:00 PM in Courtroom 9 before Judge George A. O'Toole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 06/26/2006)
22 Judge George A. O'Toole Jr.: ORDER entered. re 19 Stipulation, filed by Kathleen O'Toole,, Massachusetts Association of Minority Law Enforcement Officers,, Richard Beckers,, Ronnie Jones,, Walter R. Washington,, William E. Bridgeforth,, Shawn N. Harris,, Eugene Wade,, Georger C. Downing, Jr., Clararise Bristow,, City of Boston,

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07/26/2006 07/27/2006
07/27/2006 07/27/2006 09/05/2006 09/08/2006 09/11/2006
09/25/2006 10/05/2006 11/14/2006 11/15/2006 11/29/2006
11/30/2006 01/03/2007
01/08/2007

Boston Police Department, (Lyness, Paul) (Entered: 06/26/2006)
23 **Incorrect filing. See notice of correction dtd 7/27/06**NOTICE of Appearance by Raquel J. Webster on behalf of all plaintiffs (Webster, Raquel) Modified on 7/27/2006 (Edge, Eugenia). (Entered: 07/26/2006)
Notice of correction to docket made by Court staff. Correction: Entry #23 Notice of Appearance filed as a notice of appearance AND notice of withdrawal corrected because: Incorrectly filed. Atty. Rodrigues must file his notice of appearance and Atty. Robertson MUST file his notice of withdrawal. Atty. Webster notified of incorrect filing and the proper procedures on how to electronically file notice of appearance and withdrawal. (Edge, Eugenia) (Entered: 07/27/2006)
24 NOTICE of Withdrawal of Appearance by Paul M. Robertson of Paul M. Robertson (Robertson, Paul) (Entered: 07/27/2006)
25 NOTICE of Appearance by Louis A. Rodriques on behalf of all plaintiffs (Rodriques, Louis) (Entered: 07/27/2006)
26 NOTICE of Appearance by Mary Jo Harris on behalf of all defendants (Harris, Mary Jo) (Entered: 09/05/2006)
27 NOTICE of Appearance by Robert B. Baker on behalf of all plaintiffs (Baker, Robert) (Entered: 09/08/2006)
ElectronicClerk's Notes for proceedings held before Judge George A. O'Toole Jr.: Status Conference held on 9/11/2006. Defendant to submit initial disclosures and other outstanding discovery issues by 9/25/06. Counsel to submit a joint submission with a proposed discovery schedule due by 10/6/06. Status Conference set for 12/6/2006 02:00 PM in Courtroom 9 before Judge George A. O'Toole Jr.. (Court Reporter Shelly Killian.) (Lyness, Paul) (Entered: 09/11/2006)
28 Defendants ANSWER to Amended Complaint by City of Boston, Boston Police Department.(Harris, Mary Jo) (Entered: 09/25/2006)
29 JOINT STATEMENT of counsel With a Proposed Discovery Schedule. (Baker, Robert) (Entered: 10/05/2006)
30 MOTION to Withdraw James Chernetsky as Counsel for the Defendants by City of Boston, Boston Police Department, Kathleen O'Toole. (Attachments: # 1 Exhibit Notice of Withdrawl of James Chernetsky)(Litsas, Helen) (Entered: 11/14/2006)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 30 Motion to Withdraw (Lyness, Paul) (Entered: 11/15/2006)
31 Joint MOTION to Continue Or Take Status Conference Off Calendar by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, City of Boston, Boston Police Department, Kathleen O'Toole, Richard Beckers.(Webster, Raquel) (Entered: 11/29/2006)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 31 Motion to Continue Status Conference set for 2/7/2007 02:00 PM in Courtroom 9 before Judge George A. O'Toole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 11/30/2006)
32 STIPULATION for Entry of Order Governing the Production and Exchange of Confidential Information by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, City of Boston, Boston Police Department, Kathleen O'Toole, Richard Beckers. (Attachments: # 1 Text of Proposed Order Order Governing the Production and Exchange of Confidential Information)(Baker, Robert) (Entered: 01/03/2007)
33 Judge George A. O'Toole Jr.: ORDER GOVERNING THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION entered. (Lyness, Paul) (Entered: 01/10/2007)

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01/18/2007 01/29/2007 01/29/2007 02/07/2007
02/21/2007 02/22/2007 03/18/2007 03/22/2007 05/15/2007
05/15/2007
05/29/2007 05/30/2007 05/31/2007
06/05/2007

34 JOINT STATEMENT of counsel with a Revised, Proposed Discovery Schedule. (Baker, Robert) (Entered: 01/18/2007)
35 MOTION for Protective Order by City of Boston, Boston Police Department.(Harris, Mary Jo) (Entered: 01/29/2007)
36 MEMORANDUM in Support re 35 MOTION for Protective Order filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Harris, Mary Jo) (Entered: 01/29/2007)
ElectronicClerk's Notes for proceedings held before Judge George A. O'Toole Jr.: Status Conference held on 2/7/2007. The motion for protective order is withdrawn w/o prejudice by counsel. The joint statement submitted by counsel is adopted. Stage 1 fact discovery shall be responded to or otherwise completed by 5/31/07. All Expert discovery shall be completed by 8/31/07; Motions to compel shall be completed no later than 9/28/07. Requests to admit shall be propounded by 9/21/07 and responded to by 10/12/07. Motions terminated: 35 MOTION for Protective Order filed by City of Boston, Boston Police Department,. (Court Reporter Marcia Patrisso.) (Lyness, Paul) (Entered: 02/08/2007)
37 NOTICE of Withdrawal of Appearance by Amy E Ambarik Of Margaret M. Buckley (Ambarik, Amy) (Entered: 02/21/2007)
38 NOTICE of Withdrawal of Appearance by Raquel J. Webster for Rachael Splaine Rollins Counsel for Plaintiffs (Webster, Raquel) (Entered: 02/22/2007)
39 NOTICE of Withdrawal of Appearance by Helen G. Litsas (Litsas, Helen) (Entered: 03/18/2007)
40 NOTICE of Appearance by Nicole Murati Ferrer on behalf of City of Boston, Boston Police Department, Kathleen O'Toole (Murati Ferrer, Nicole) (Entered: 03/22/2007)
41 MOTION to Compel Psychemedics Corporation to Produce its Standard Operating Procedures for Testing Hair Samples for Drugs of Abuse by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit Exhibit A − proposed Order)(Baker, Robert) (Entered: 05/15/2007)
42 MEMORANDUM in Support re 41 MOTION to Compel Psychemedics Corporation to Produce its Standard Operating Procedures for Testing Hair Samples for Drugs of Abuse filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A − 1 of 2# 2 Exhibit A − 2 of 2# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D − 1 of 2# 6 Exhibit D − 2 of 2)(Baker, Robert) (Entered: 05/15/2007)
43 Assented to MOTION for Extension of Time to 6/5/2007 to File Response/Reply as to 41 MOTION to Compel Psychemedics Corporation to Produce its Standard Operating Procedures for Testing Hair Samples for Drugs of Abuse by Psychemedics Corporation.(Holland, John) (Entered: 05/29/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 43 Motion for Extension of Time to File Response/Reply Responses due by 6/5/2007 (Lyness, Paul) (Entered: 05/30/2007)
44 Joint MOTION for Extension of Time to 7/13/2007 to Complete Discovery of Stage I Fact Discovery by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Baker, Robert) (Entered: 05/31/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 44 Motion for Extension of Time to Complete Discovery. All Stage I Fact Discovery ( as defined above and by the October 5, 2006 Joint Statement) shall be responded to or otherwise is completed by 7/13/07; Motions to compel regarding Stage I Fact Discovery shall be filed as soon as practicable, but not later than 7/20/07. (Lyness, Paul) (Entered: 06/05/2007)

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06/05/2007 06/11/2007 06/11/2007
06/15/2007 06/15/2007
06/21/2007 06/29/2007 07/02/2007
07/03/2007 07/06/2007 07/09/2007 07/12/2007

45 MEMORANDUM in Opposition re 41 MOTION to Compel Psychemedics Corporation to Produce its Standard Operating Procedures for Testing Hair Samples for Drugs of Abuse filed by Psychemedics Corporation. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Holland, John) (Entered: 06/05/2007)
46 MOTION to Compel Defendants to Produce Positive Hair Test Results And E−Mails Responsvie to Plaintiffs' Document Requests by William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A − Proposed Order)(Baker, Robert) (Entered: 06/11/2007)
47 MEMORANDUM in Support re 46 MOTION to Compel Defendants to Produce Positive Hair Test Results And E−Mails Responsvie to Plaintiffs' Document Requests filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I)(Baker, Robert) (Entered: 06/11/2007)
48 MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Baker, Robert) (Entered: 06/15/2007)
49 MEMORANDUM in Support re 48 MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Baker, Robert) (Entered: 06/15/2007)
50 Assented to MOTION for Extension of Time to july 2, 2007 to File Response/Reply as to 46 MOTION to Compel Defendants to Produce Positive Hair Test Results And E−Mails Responsvie to Plaintiffs' Document Requests by City of Boston, Boston Police Department.(Harris, Mary Jo) (Entered: 06/21/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 50 Motion for Extension of Time to File Response/Reply re 46 MOTION to Compel Defendants to Produce Positive Hair Test Results And E−Mails Responsvie to Plaintiffs' Document Requests Responses due by 7/2/2007 (Lyness, Paul) (Entered: 06/29/2007)
51 MEMORANDUM in Opposition re 46 MOTION to Compel Defendants to Produce Positive Hair Test Results And E−Mails Responsvie to Plaintiffs' Document Requests and Cross Motion for Protective Order filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit M. Reagan Deposition# 2 Exhibit Rule 111, Appendix D# 3 Exhibit Letter of Counsel# 4 Exhibit Deposition of J. Devlin# 5 Exhibit Affidavits, Fitzpatrick and Cappellano)(Harris, Mary Jo) (Entered: 07/02/2007)
52 Assented to MOTION to Seal Exhibit D to Defendants' Opposition to Plaintiffs' Motion to Compel and Cross Motion for Protective Order by City of Boston, Boston Police Department.(Harris, Mary Jo) (Entered: 07/03/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 52 Motion to Seal Exhibit D. (Edge, Eugenia) (Entered: 07/06/2007)
53 Assented to MOTION for Leave to File A Short Reply Memorandum in Response to Defendants' Opposition to Plaintiffs' Motion to Compel by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Baker, Robert) (Entered: 07/09/2007)
54 Joint MOTION for Extension of Time to 8/3/2007 to Complete Discovery of Stage I Fact Discovery by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris,

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07/12/2007 07/12/2007 07/12/2007 07/18/2007 07/18/2007 07/20/2007
08/17/2007 08/17/2007 08/17/2007

Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Baker, Robert) (Entered: 07/12/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 53 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lyness, Paul) (Entered: 07/12/2007)
55 MOTION for Extension of Time to File Response/Reply as to 48 MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C by Psychemedics Corporation.(Holland, John) (Entered: 07/12/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 54 Motion for Extension of Time to Complete Discovery, All Stage 1 Fact Discovery( as defined above and by the October 5, 2006 Joint Statement) shall be responded to or oatherwise completed by 8/3/07. Motions to compel regarding Stage 1 Fact Discovery shall be filed as soon as practicable, but not later than 8/17/07. (Lyness, Paul) (Entered: 07/12/2007)
56 NOTICE of Appearance by Eric A. Heining on behalf of Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers (Heining, Eric) (Entered: 07/18/2007)
57 REPLY to Response to Motion re 46 MOTION to Compel Defendants to Produce Positive Hair Test Results And E−Mails Responsvie to Plaintiffs' Document Requests (Leave to File granted on July 12, 2007) filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Heining, Eric) (Entered: 07/18/2007)
58 Opposition re 55 MOTION for Extension of Time to File Response/Reply as to 48 MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C MOTION to Strike 45 Mem MOTION for Extension of Time to File Response/Reply as to 48 MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C MOTION to Strike 45 Mem filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A)(Baker, Robert) (Entered: 07/20/2007)
59 MOTION to Compel Psychemedics Corporation to Produce Documents by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A − Proposed Order)(Baker, Robert) (Entered: 08/17/2007)
60 MEMORANDUM in Support re 59 MOTION to Compel Psychemedics Corporation to Produce Documents filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10)(Baker, Robert) (Entered: 08/17/2007)
61 MOTION to Compel Production of Non−Privileged Deposition Testimony and a Rule 26 Privilege Log by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1)(Heining, Eric) (Entered: 08/17/2007)

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08/17/2007
08/17/2007 08/17/2007 08/17/2007 08/28/2007 08/28/2007 08/28/2007 09/05/2007
09/05/2007 09/11/2007 09/21/2007 09/24/2007 10/05/2007

62 MEMORANDUM in Support re 61 MOTION to Compel Production of Non−Privileged Deposition Testimony and a Rule 26 Privilege Log filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M)(Heining, Eric) (Entered: 08/17/2007)
63 MOTION for Protective Order by City of Boston, Boston Police Department.(Harris, Mary Jo) (Entered: 08/17/2007)
64 MEMORANDUM in Support re 63 MOTION for Protective Order filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit Boyle deposition# 2 Exhibit DeBow deposition# 3 Exhibit Murphy deposition# 4 Exhibit Boyle notes; personnel order; intranet document)(Harris, Mary Jo) Additional attachment(s) added on 8/20/2007 (Edge, Eugenia). (Entered: 08/17/2007)
65 CERTIFICATE OF CONSULTATION re 64 Memorandum in Support of Motion, 63 MOTION for Protective Order. (Harris, Mary Jo) (Entered: 08/17/2007)
66 Withdrawal of motion: 64 Memorandum in Support of Motion, filed by City of Boston, Boston Police Department, 63 MOTION for Protective Order filed by City of Boston, Boston Police Department.. (Harris, Mary Jo) (Entered: 08/28/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 55 Motion for Extension of Time to File Response Plaintiffs' motion to strike the affidavit of William Thistle. (Edge, Eugenia) (Entered: 08/28/2007)
67 Opposition re 61 MOTION to Compel Production of Non−Privileged Deposition Testimony and a Rule 26 Privilege Log filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit depositions# 2 Exhibit depositions# 3 Exhibit depositions)(Harris, Mary Jo) (Entered: 08/28/2007)
ELECTRONIC NOTICE of Hearing on Motion 59 MOTION to Compel Psychemedics Corporation to Produce Documents, 48 MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C, 61 MOTION to Compel Production of Non−Privileged Deposition Testimony and a Rule 26 Privilege Log, 46 MOTION to Compel Defendants to Produce Positive Hair Test Results And E−Mails Responsvie to Plaintiffs' Document Requests, 41 MOTION to Compel Psychemedics Corporation to Produce its Standard Operating Procedures for Testing Hair Samples for Drugs of Abuse : Motion Hearing set for 10/10/2007 02:00 PM in Courtroom 9 before Judge George A. O'Toole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 09/05/2007)
68 NOTICE of Withdrawal of Appearance by Robert B. Baker (Baker, Robert) (Entered: 09/05/2007)
69 NOTICE of Appearance by William F. Benson on behalf of Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers (Benson, William) (Entered: 09/11/2007)
70 MOTION to Continue Motion Hearing to October 24, 2007 by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Heining, Eric) (Entered: 09/21/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 70 Motion to Continue Motion Hearing set for 10/24/2007 02:00 PM in Courtroom 9 before Judge George A. O'Toole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 09/24/2007)
71 NOTICE of Appearance by Laura Maslow−Armand on behalf of Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C.

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10/11/2007 10/12/2007 10/12/2007 10/12/2007 10/17/2007 10/17/2007
10/19/2007 10/22/2007 10/23/2007 10/24/2007

Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers (Maslow−Armand, Laura) (Entered: 10/05/2007)
72 NOTICE of Withdrawal of Appearance by Nadine M. Cohen (Cohen, Nadine) (Entered: 10/11/2007)
73 MOTION for Leave to File third party complaint by City of Boston, Boston Police Department.(Harris, Mary Jo) (Entered: 10/12/2007)
74 MEMORANDUM in Support re 73 MOTION for Leave to File third party complaint filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit # 2 Exhibit)(Harris, Mary Jo) (Entered: 10/12/2007)
75 CERTIFICATE OF CONSULTATION re 74 Memorandum in Support of Motion, 73 MOTION for Leave to File third party complaint. (Harris, Mary Jo) (Entered: 10/12/2007)
76 NOTICE of Appearance by Nikki J. Fisher on behalf of Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers (Fisher, Nikki) (Entered: 10/17/2007)
77 Assented to MOTION to Substitute Party Edward Davis for Kathleen O'Toole as the Current Commissioner of the Boston Police Deparment by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Text of Proposed Order Ex. A)(Fisher, Nikki) (Entered: 10/17/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 77 Motion to Substitute Party. Edward Davis rep by Mary Jo Harris, Amy E. Ambarik, Nicole Murati Ferrer added. Kathleen O'Toole terminated (Edge, Eugenia) Modified on 10/19/2007 (Edge, Eugenia). (Entered: 10/19/2007)
78 **Entry #79 Memorandum with exhibits** MEMORANDUM in Opposition re 73 MOTION for Leave to File third party complaint filed by Psychemedics Corporation. (Holland, John) Modified on 10/24/2007 (Edge, Eugenia). (Entered: 10/22/2007)
79 Amended MEMORANDUM in Opposition re 73 MOTION for Leave to File third party complaint filed by Psychemedics Corporation. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Holland, John) (Entered: 10/23/2007)
Electronic Clerk's Notes for proceedings held before Judge George A. O'Toole Jr.: Motion Hearing held on 10/24/2007 re 46 MOTION to Compel Defendants to Produce Positive Hair Test Results And E−Mails Responsvie to Plaintiffs' Document Requests filed by Clararise Bristow, Shawn N. Harris, Ronnie Jones, Richard Beckers, Georger C. Downing, Jr., Eugene Wade, William E. Bridgeforth, Massachusetts Association of Minority Law Enforcement Officers, 61 MOTION to Compel Production of Non−Privileged Deposition Testimony and a Rule 26 Privilege Log filed by Clararise Bristow, Shawn N. Harris, Ronnie Jones, Walter R. Washington, Richard Beckers, Georger C. Downing, Jr., Eugene Wade, William E. Bridgeforth, Massachusetts Association of Minority Law Enforcement Officers, 73 MOTION for Leave to File third party complaint filed by City of Boston, Boston Police Department, 41 MOTION to Compel Psychemedics Corporation to Produce its Standard Operating Procedures for Testing Hair Samples for Drugs of Abuse filed by Clararise Bristow, Shawn N. Harris, Ronnie Jones, Walter R. Washington, Richard Beckers, Georger C. Downing, Jr., Eugene Wade, William E. Bridgeforth, Massachusetts Association of Minority Law Enforcement Officers, 59 MOTION to Compel Psychemedics Corporation to Produce Documents filed by Clararise Bristow, Shawn N. Harris, Ronnie Jones, Walter R. Washington, Richard Beckers, Georger C. Downing, Jr., Eugene Wade, William E. Bridgeforth, Massachusetts Association of Minority Law Enforcement Officers, 48 MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C MOTION to Strike 45 Memorandum in Opposition to Motion, Including All References to the Content of the Affidavit of William Thistle Attached as Exhibit C filed by Clararise Bristow, Shawn N. Harris, Ronnie Jones, Walter R. Washington,

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10/25/2007 10/26/2007
11/02/2007 11/05/2007 12/14/2007
02/14/2008 02/14/2008 02/22/2008
02/22/2008
02/22/2008
03/04/2008 03/07/2008 04/24/2008

Richard Beckers, Georger C. Downing, Jr., Eugene Wade, William E. Bridgeforth, Massachusetts Association of Minority Law Enforcement Officers. The court takes the matter under advisement. (Court Reporter Marcia Patrisso.) (Lyness, Paul) (Entered: 10/24/2007)
80 Judge George A. O'Toole Jr.: ORDER entered. (Lyness, Paul) (Entered: 10/25/2007)
81 MEMORANDUM in Opposition re 73 MOTION for Leave to File third party complaint filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A)(Webster, Raquel) (Entered: 10/26/2007)
82 MOTION to Seal Document by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Webster, Raquel) (Entered: 11/02/2007)
Judge George A. O'Toole Jr.: Electronic ORDER entered granting 82 Motion to Seal Document. Exhibit A delivered to Judge O'Toole. (Edge, Eugenia) (Entered: 11/05/2007)
83 Judge George A. OToole Jr.: ORDER entered granting in part and denying in part 41 Motion to Compel; granting in part and denying in part 46 Motion to Compel; denying 48 Motion to Strike ; granting in part and denying in part 59 Motion to Compel; granting in part and denying without prejudice in part 61 Motion to Compel; denying 73 Motion for Leave to File; The plaintiffs' request for an award of costs is denied. (Lyness, Paul) (Entered: 12/14/2007)
84 NOTICE of Appearance by Meredith M. Leary on behalf of Psychemedics Corporation (Leary, Meredith) (Entered: 02/14/2008)
85 NOTICE of Appearance by Peter A. Biagetti on behalf of Psychemedics Corporation (Biagetti, Peter) (Entered: 02/14/2008)
86 MOTION to Compel Psychemedics Corporation's Compliance with this Court's December 14, 2007 Order by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Benson, William) Modified on 7/15/2008 (Lyness, Paul). (Entered: 02/22/2008)
87 MEMORANDUM in Support re 86 MOTION to Compel Psychemedics Corporation's Compliance with this Court's December 14, 2007 Order filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Benson, William) (Entered: 02/22/2008)
88 AFFIDAVIT in Support re 86 MOTION to Compel Psychemedics Corporation's Compliance with this Court's December 14, 2007 Order filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Benson, William) (Entered: 02/22/2008)
89 NOTICE of Withdrawal of Appearance by Maricia D. Woodham (Woodham, Maricia) (Entered: 03/04/2008)
90 Opposition re 86 MOTION to Compel Psychemedics Corporation's Compliance with this Court's December 14, 2007 Order And Request for Supplemental Provisions in the Protective Order filed by Psychemedics Corporation. (Attachments: # 1 Affidavit, # 2 Affidavit)(Leary, Meredith) (Entered: 03/07/2008)
ELECTRONIC NOTICE of Hearing on Motion 86 MOTION to Compel Psychemedics Corporation's Compliance with this Court's December 14, 2007 Order : Motion Hearing set for 5/20/2008 03:00 PM in Courtroom 9 before Judge George A. OToole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 04/24/2008)

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04/24/2008 05/21/2008
05/21/2008 05/22/2008 05/27/2008 06/04/2008 06/06/2008 06/06/2008 09/10/2008 11/19/2008 01/20/2009
04/02/2009
04/02/2009 06/18/2009

Reset Hearings: Motion Hearing (86) is now set for 5/21/2008 02:00 PM in Courtroom 9 before Judge George A. OToole Jr.. Please make the necessary change in your calendars. (Lyness, Paul) (Entered: 04/24/2008)
Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Motion Hearing held on 5/21/2008 re 86 MOTION to Compel Psychemedics Corporation's Compliance with this Court's December 14, 2007 Order filed by Clararise Bristow, Shawn N. Harris, Ronnie Jones, Walter R. Washington, Richard Beckers, Georger C. Downing, Jr., Eugene Wade, William E. Bridgeforth, Massachusetts Association of Minority Law Enforcement Officers.The court instructs the parties to draft and submit jointly a revised Protective Order in accordance with the general parameters set out by the Court. (Court Reporter: Debra Joyce.)(Attorneys present: For Plaintiff: William F. Benson; For Defendant City of Boston, Boston Police Department; Mary Jo Harris; For Psychemedics Corporation: Peter A. Biagetti) (Lyness, Paul) (Entered: 05/22/2008)
91 NOTICE of Change of Address or Firm Name by William F. Benson, Nikki J. Fisher, Eric A. Heining, Louis A. Rodriques, Rheba Rutkowski, Raquel J. Webster. (Edge, Eugenia) (Entered: 05/22/2008)
92 NOTICE issued to Atty. Rodriques, Atty. Rutkowski, Atty. Benson, Atty. Webster, Atty. Fisher, Atty. Heining regarding mandatory use of ECF in compliance with Local Rule 5.4. Failure to comply may result in the imposition of sanctions. (Edge, Eugenia) (Entered: 05/22/2008)
93 NOTICE of Appearance by Omar A. Khondker on behalf of Psychemedics Corporation (Khondker, Omar) (Entered: 05/27/2008)
94 MOTION for Protective Order (Entry of Supplemental) by Psychemedics Corporation.(Khondker, Omar) (Entered: 06/04/2008)
Judge George A. OToole, Jr: Electronic ORDER entered granting 94 Motion for Protective Order (Lyness, Paul) (Entered: 06/09/2008)
95 Judge George A. OToole, Jr: ORDER entered. SUPPLEMENTAL PROTECTIVE ORDER(Lyness, Paul) (Entered: 06/09/2008)
96 STATEMENT OF COUNSEL re: Production to Qualified Persons under Court's Protective Orders by Psychemedics Corporation. (Khondker, Omar) (Entered: 09/10/2008)
97 NOTICE of Withdrawal of Appearance by William F. Benson (Benson, William) (Entered: 11/19/2008)
98 JOINT SUBMISSION pursuant to Local Rule 16.1 Joint Statement of a Proposed Revised Discovery Schedule by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Heining, Eric) (Entered: 01/20/2009)
Set/Reset Deadlines: Discovery to be completed by 6/22/2009. Motions to compel regarding expert discovery shall be filed as soon as practicable but not later than 6/29/09. Expert Reports: 3/16/09; Expert rebuttal reports: 4/13/09; Expert reply reports: 5/4/09; Daubert Motions: All Daubert motions shall be served and filed no later than 7/27/09; Daubert opposition motions: opposition papers will be served and filed no later than 8/17/09. Stage I Requests to Admit shall be propounded by 9/11/09 and responded to by 9/25/09. (Lyness, Paul) (Entered: 04/02/2009)
ELECTRONIC NOTICE of Hearing : Status Conference set for 10/5/2009 02:00 PM in Courtroom 9 before Judge George A. OToole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 04/02/2009)
99 JOINT SUBMISSION pursuant to Local Rule 16.1 JOINT STATEMENT OF A FURTHER PROPOSED REVISED DISCOVERY SCHEDULE by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Heining, Eric) (Entered: 06/18/2009)

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06/30/2009 06/30/2009
07/24/2009
07/27/2009 08/27/2009 08/28/2009 08/28/2009 08/28/2009 08/28/2009 08/28/2009
09/01/2009 09/10/2009 09/11/2009

Judge George A. OToole, Jr: Electronic ORDER entered. APPROVING 99 Joint submission, filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade (Edge, Eugenia) (Entered: 06/30/2009)
Scheduling Order Deadlines: Expert Deposition completed by 7/15/2009. All expert discovery by 7/15/2009. Motion to compel regarding expert discovery filed as soon as practicable but not later than 7/24/2009. Daubert motion due by 8/28/2009. Opposition by 9/18/2009. Summary Judgment Motions due by 10/30/2009. Oppositions by 11/20/2009. Replies served and filed no later than 12/4/2009. (Edge, Eugenia) (Entered: 06/30/2009)
100 MOTION for Extension of Time to July 31, 2009 to Compel Expert Discovery Assented−To Motion to Extend by One Week the Deadline Regarding Motions to Compel Expert Discovery by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Heining, Eric) (Entered: 07/24/2009)
Judge George A. OToole, Jr: Electronic ORDER entered granting 100 Motion for Extension of Time. Motions due by 7/31/2009. (Lyness, Paul) (Entered: 07/27/2009)
101 MOTION for Extension of Time to at Least September 15, 2009 to File Daubert Motions by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Webster, Raquel) (Entered: 08/27/2009)
102 NOTICE of Appearance by Sean P. O'Connor on behalf of City of Boston, Boston Police Department (O'Connor, Sean) (Entered: 08/28/2009)
103 MOTION to Preclude Expert Testimony of Sharon Kelly, Ph.D. by City of Boston, Boston Police Department. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(O'Connor, Sean) (Entered: 08/28/2009)
104 MOTION to Preclude Expert Testimony of J. Michael Walsh, Ph.D. by City of Boston, Boston Police Department. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J)(O'Connor, Sean) (Entered: 08/28/2009)
105 MOTION to Compel Production of Cummunications Between Defendants and Psychemedics Corporation by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Heining, Eric) (Entered: 08/28/2009)
106 MEMORANDUM in Support re 105 MOTION to Compel Production of Cummunications Between Defendants and Psychemedics Corporation filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Heining, Eric) (Entered: 08/28/2009)
107 NOTICE of Appearance by Michael K. Clarkson on behalf of City of Boston, Boston Police Department (Clarkson, Michael) (Entered: 09/01/2009)
108 Opposition re 101 MOTION for Extension of Time to at Least September 15, 2009 to File Daubert Motions filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit 1)(O'Connor, Sean) (Entered: 09/10/2009)
109 Opposition re 105 MOTION to Compel Production of Cummunications Between Defendants and Psychemedics Corporation filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(O'Connor, Sean) (Entered: 09/11/2009)

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09/18/2009
09/19/2009
10/01/2009 10/02/2009 10/02/2009 10/05/2009 10/06/2009 10/06/2009 10/12/2009
10/14/2009 10/15/2009
10/19/2009

110 MEMORANDUM in Opposition re 104 MOTION to Preclude Expert Testimony of J. Michael Walsh, Ph.D. filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Heining, Eric) (Entered: 09/18/2009)
111 Opposition re 103 MOTION to Preclude Expert Testimony of Sharon Kelly, Ph.D. filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Webster, Raquel) (Entered: 09/19/2009)
Remark− Pursuant to the electronic notice of 4/2/09, a status conference is scheduled for 10/5/09 at 2:00 pm (Lyness, Paul) (Entered: 10/01/2009)
112 Assented to MOTION to Continue status conference to October 19, 2009 by City of Boston, Boston Police Department.(Harris, Mary Jo) (Entered: 10/02/2009)
Judge George A. OToole, Jr: Electronic ORDER entered granting 112 Motion to Continue Status Conference set for 10/19/2009 02:00 PM in Courtroom 9 before Judge George A. OToole Jr.. Please make the change in your calendars. (Lyness, Paul) (Entered: 10/02/2009)
113 Assented to MOTION for Leave to File Reply Memoranda by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit Exhibit 1 (Proposed Reply Brief and Affidavit in Support))(Clarkson, Michael) (Entered: 10/05/2009)
Judge George A. OToole, Jr: Electronic ORDER entered granting 113 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lyness, Paul) (Entered: 10/06/2009)
114 REPLY to Response to 103 MOTION to Preclude Expert Testimony of Sharon Kelly, Ph.D. filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit A (Affidavit of Kathleen K. Lundquist))(Clarkson, Michael) (Entered: 10/06/2009)
115 MOTION to Continue Go Forward via teleconference or continue the status conference Joint Motion Concerning The Status Conference Presently Scheduled For October 19 by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Webster, Raquel) (Entered: 10/12/2009)
116 MOTION to Strike Affidavits of Dr. Kathleen K. Lundquist, Ph. D. by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Webster, Raquel) (Lyness, Paul). (Entered: 10/14/2009)
Judge George A. OToole, Jr: Electronic ORDER entered. The Joint Motion Concerning the Status Conference (dkt. no. 115) is GRANTED in so far as the plaintiffs' counsel request to participate telephonically. Oral argument will be heard on the plaintiffs' Motion to Compel (dkt. no. 105), but not on the Daubert motions. The plaintiffs' counsel may either argue via telephone or appear in person.Motions terminated: 115 MOTION to Continue Go Forward via teleconference or continue the status conference Joint Motion Concerning The Status Conference Presently Scheduled For October 19 filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade.(Lyness, Paul) (Entered: 10/15/2009)
Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Status Conference held on 10/19/2009, The Motion to Compel 105 is DENIED for the reasons stated in open court. Plaintiff's Daubert Motions to be filed by the end of business on Friday 10/23/09. 21 days thereafter for any opposition. Motions

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10/23/2009
10/23/2009
10/28/2009 11/13/2009 11/13/2009 11/23/2009 11/24/2009 11/24/2009 11/24/2009 12/01/2009

terminated: 105 MOTION to Compel Production of Cummunications Between Defendants and Psychemedics Corporation filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade. (Court Reporter: Marcia Patrisso.)(Attorneys present: For Plaintiffs: Raquel Webster and Eric Heining; For Defendants: Michael Clarkson) (Lyness, Paul) (Entered: 10/21/2009)
117 MOTION to Preclude All Testimony of Defendants' Expert Witness Dr. Leo J. Kadehjian by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Webster, Raquel) Modified on 10/26/2009 to edit the text.(Jones, Sherry). Modified on 10/26/2009 (Duong, Diep). Modified on 12/1/2009 to edit text (Danieli, Chris). (Entered: 10/23/2009)
118 MEMORANDUM in Support re 117 MOTION to Preclude All Testimony of Defendants' Expert Witness Dr. Leo J. Kadehjian filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Webster, Raquel) Modified on 10/26/2009 (Jones, Sherry). Modified on 10/26/2009 (Duong, Diep). (Entered: 10/23/2009)
119 Opposition re 116 MOTION to Strike Affidavits of Dr. Kathleen K. Lundquist, Ph. D. filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(O'Connor, Sean) (Entered: 10/28/2009)
120 MOTION for Leave to File Assented−To Motion for Leave to File Reply Memorandum by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit 1)(Webster, Raquel) (Entered: 11/13/2009)
121 Opposition re 117 MOTION filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(O'Connor, Sean) (Entered: 11/13/2009)
Judge George A. OToole, Jr: Electronic ORDER entered granting 120 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lyness, Paul) (Entered: 11/23/2009)
122 SUR−REPLY to Motion re 103 MOTION to Preclude Expert Testimony of Sharon Kelly, Ph.D. filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Webster, Raquel) (Entered: 11/24/2009)
123 MOTION for Leave to File Sur−Reply by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit 1)(Webster, Raquel) (Entered: 11/24/2009)
124 MEMORANDUM in Support re 116 MOTION to Strike Affidavits of Dr. Kathleen K. Lundquist, Ph. D. filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Webster, Raquel) Modified to correct link to proper document on 11/25/2009 (Danieli, Chris). (Entered: 11/24/2009)
Judge George A. OToole, Jr: Electronic ORDER entered granting 123 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the

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12/01/2009 12/07/2009 12/07/2009 12/17/2009 12/18/2009 12/18/2009 12/21/2009 01/13/2010 01/14/2010
01/14/2010

document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lyness, Paul) (Entered: 12/01/2009)
125 SUR−REPLY to Motion re 103 MOTION to Preclude Expert Testimony of Sharon Kelly, Ph.D. filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Webster, Raquel) (Entered: 12/01/2009)
ELECTRONIC NOTICE of Hearing on Motion 116 MOTION to Strike Affidavits of Dr. Kathleen K. Lundquist, Ph. D., 103 MOTION to Preclude Expert Testimony of Sharon Kelly, Ph.D., 104 MOTION to Preclude Expert Testimony of J. Michael Walsh, Ph.D., 117 MOTION to preclude testimony : Motion Hearing set for 1/13/2010 02:30 PM in Courtroom 9 before Judge George A. OToole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 12/07/2009)
Judge George A. OToole, Jr: Electronic ORDER entered finding as moot 101 Motion for Extension of Time (Lyness, Paul) (Entered: 12/07/2009)
126 Joint MOTION to Continue January 13, 2010 Hearing to January 20, 2010 or February 24, 2010 by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Edward Davis, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, City of Boston, Boston Police Department, Kathleen O'Toole, Richard Beckers.(Webster, Raquel) (Entered: 12/17/2009)
Judge George A. OToole, Jr: Electronic ORDER entered granting 126 Motion to Continue (Lyness, Paul) (Entered: 12/18/2009)
ELECTRONIC NOTICE of Hearing on Motion 116 MOTION to Strike Affidavits of Dr. Kathleen K. Lundquist, Ph. D., 103 MOTION to Preclude Expert Testimony of Sharon Kelly, Ph.D., 104 MOTION to Preclude Expert Testimony of J. Michael Walsh, Ph.D., 117 MOTION to preclude testimony : Motion Hearing set for 1/20/2010 02:30 PM in Courtroom 9 before Judge George A. OToole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 12/18/2009)
127 MEMORANDUM in Support re 116 MOTION to Strike Affidavits of Dr. Kathleen K. Lundquist, Ph. D. filed by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Richard Beckers. (Webster, Raquel) (Entered: 12/21/2009)
128 Final MOTION for Leave to Appear Pro Hac Vice for admission of Ming M. Zhu Filing fee $ 50, receipt number 01010000000002740817. by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Maslow−Armand, Laura) (Entered: 01/13/2010)
Judge George A. OToole, Jr: Electronic ORDER entered granting 128 Motion for Leave to Appear Pro Hac Vice; Added Ming M Zhu for Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers and Richard Beckers. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Danieli, Chris) (Entered: 01/14/2010)
129 CERTIFICATE OF SERVICE by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers re 128 Final MOTION for Leave to Appear Pro Hac Vice for admission of Ming M. Zhu Filing fee $ 50, receipt number 01010000000002740817.. (Maslow−Armand, Laura) (Entered: 01/14/2010)

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01/14/2010 01/14/2010 01/20/2010
01/21/2010 01/28/2010 01/29/2010 01/29/2010 02/26/2010 03/10/2010 03/11/2010 03/15/2010 03/18/2010

130 NOTICE of Withdrawal of Appearance by Omar A. Khondker as counsel for Psychemedics Corporation (Khondker, Omar) (Entered: 01/14/2010)
ELECTRONIC NOTICE of Duplicate Filing Fee and Credit for Refund re 128 Final MOTION for Leave to Appear Pro Hac Vice for admission of Ming M. Zhu Filing fee $ 50, receipt number 01010000000002740817., for $50.00 paid on 01/13/2010, receipt number 01010000000002740771. (Adam, Lucien) (Entered: 01/14/2010)
Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Motion Hearing held on 1/20/2010 re 104 MOTION to Preclude Expert Testimony of J. Michael Walsh, Ph.D. filed by City of Boston, Boston Police Department, 117 MOTION to preclude testimony filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade, 103 MOTION to Preclude Expert Testimony of Sharon Kelly, Ph.D. filed by City of Boston, Boston Police Department. The court DENIES the Motion to Strike Affidavits 116 . The court takes the other motions under advisement. Any motions to be filed are to be filed within 30 days after the ruling of the present motions. Motions terminated: 116 MOTION to Strike Affidavits of Dr. Kathleen K. Lundquist, Ph. D. filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Eugene Wade, William E. Bridgeforth, Massachusetts Association of Minority Law Enforcement Officers. (Court Reporter: Marcia Patrisso.)(Attorneys present: For Plaintiffs: Ming Zhu, Raquel Webster, Rheba Rutkowski and Eric Heining; For Defendants: Mary Jo Harris, Michael Clarkson, and Sean O'Connor) (Lyness, Paul) (Entered: 01/21/2010)
131 Judge George A. OToole, Jr: ORDER entered denying 103 Motion ; denying 104 Motion ; denying 117 Motion (Lyness, Paul) (Entered: 01/21/2010)
132 NOTICE of Appearance by Doreen M. Rachal on behalf of Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers (Rachal, Doreen) (Entered: 01/28/2010)
133 Transcript of Proceedings held on January 20, 2010, before Judge O'Toole. Court Reporter: Marcia Patrisso at 617/737−8728. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 2/19/2010. Redacted Transcript Deadline set for 3/1/2010. Release of Transcript Restriction set for 4/29/2010. (Dello Russo, Frank) (Entered: 01/29/2010)
134 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Dello Russo, Frank) (Entered: 01/29/2010)
ELECTRONIC NOTICE of Hearing : Final Pretrial Conference set for 4/29/2010 02:00 PM in Courtroom 9 before Judge George A. OToole Jr.. Jury Trial set for 5/10/2010 09:00 AM in Courtroom 9 before Judge George A. OToole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 02/26/2010)
135 NOTICE of Withdrawal of Appearance by Raquel J. Webster AS COUNSEL FOR PLAINTIFFS (Webster, Raquel) (Entered: 03/10/2010)
136 Joint MOTION to Amend JOINT MOTION TO AMEND TRIAL ORDER by Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr, Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers.(Heining, Eric) (Entered: 03/11/2010)
ELECTRONIC NOTICE of Hearing : Status Conference set for 3/29/2010 02:00 PM in Courtroom 9 before Judge George A. OToole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 03/15/2010)
137 NOTICE of Appearance by Yin Shaun Lue on behalf of Walter R. Washington, William E. Bridgeforth, Shawn N. Harris, Eugene Wade, Georger C. Downing, Jr,

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03/29/2010
03/30/2010 03/30/2010 03/30/2010 08/31/2010 09/16/2010 10/04/2010
10/05/2010 10/08/2010 11/09/2010 11/22/2010 11/24/2010 12/14/2010
12/15/2010

Ronnie Jones, Clararise Bristow, Rachelle Couch, Keri Hogan, Massachusetts Association of Minority Law Enforcement Officers, Richard Beckers (Lue, Yin) (Entered: 03/18/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Status Conference held on 3/29/2010. The court grants the parties joint motion to amend the schedule. ( Status Conference set for 10/4/2010 02:00 PM in Courtroom 9 before Judge George A. OToole Jr..). (Court Reporter: Marcia Patrisso at 617−737−8728.)(Attorneys present: For Plaintiffs: Ming Zhu, Eric Heining, Doreen Rachal and Laura Maslow−Armand; For Defendants: Michael Clarkson and Mary Jo Harris) (Lyness, Paul) (Entered: 03/30/2010)
Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 136 Motion to Amend (Lyness, Paul) Modified on 3/30/2010 (Lyness, Paul). Modified on 3/30/2010 (Lyness, Paul). (Entered: 03/30/2010)
Reset Deadlines: Written Discovery: Deadline of 4/30/10 to propound Phase II written discovery. Depositions: Phase II depositions to commence 7/1/10 and continue until 10/8/10. Expert Discovery to be completed by 1/28/2011. Motions due by 6/17/2011. (Lyness, Paul) (Entered: 03/30/2010)
ELECTRONIC NOTICE Resetting or Canceling Hearing. Hearing rescheduled or canceled: The final pre trial conference set for 4/29/10 at 2:00 and the jury trial set for 5/10/10 at 9:00 have been cancelled. (Lyness, Paul) (Entered: 03/30/2010)
139 NOTICE of Withdrawal of Appearance by Rheba Rutkowski as Counsel for Plaintiffs (Rutkowski, Rheba) (Entered: 08/31/2010)
140 Joint MOTION to Amend Scheduling Order by City of Boston, Boston Police Department.(O'Connor, Sean) (Entered: 09/16/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Status Conference held on 10/4/2010. The court approves the dates in the amended scheduling order filed by counsel. Phase II depositions conclude by 1/7/11. ( Admissions due by 5/6/2011., Expert Discovery to be completed by 4/8/2011., Motions due by 7/8/2011.). (Court Reporter: Marcia Patrisso at 617−737−8728.)(Attorneys present: For Plaintiff: Doreen Rachal, Eric Heining; For Defendant: Mary Jo Harris, Michael Clarkson, and Sean O'Connor) (Lyness, Paul) (Entered: 10/05/2010)
141 NOTICE of Withdrawal of Appearance by Nikki J. Fisher (Fisher, Nikki) (Entered: 10/05/2010)
142 NOTICE of Withdrawal of Appearance by Ming M Zhu (Zhu, Ming) (Entered: 10/08/2010)
Motions terminated: 140 Joint MOTION to Amend Scheduling Order filed by City of Boston, Boston Police Department. Schedule Amended in Clerk's Notes entered 10/4/2010. (Danieli, Chris) (Entered: 11/09/2010)
143 NOTICE of Appearance by Helen G. Litsas on behalf of City of Boston, Boston Police Department, Kathleen O'Toole (Litsas, Helen) (Entered: 11/22/2010)
144 NOTICE of Withdrawal of Appearance by Mary Jo Harris (Harris, Mary Jo) (Entered: 11/24/2010)
145 MOTION for Protective Order to Quash Plaintiffs' Deposition Notice by City of Boston, Boston Police Department. (Attachments: # 1 Memorandum of Law, # 2 Affidavit of Sean P. O'Connor, # 3 Exhibit A to the Affidavit, # 4 Exhibit B to the Affidavit, # 5 Exhibit C to the Affidavit, # 6 Part 1 of 3 of Exhibit D to the Affidavit, # 7 Part 2 of 3 of Exhibit D to the Affidavit, # 8 Part 3 of 3 of Exhibit D to the Affidavit)(O'Connor, Sean) (Entered: 12/14/2010)
Judge George A. OToole, Jr: ELECTRONIC ORDER Entered. The plaintiff's taking of the deposition pursuant to Federal Rule of Civil Procedure 30(b)(6), currently scheduled to take place on December 17, 2010, shall be stayed pending resolution of defendant's Motion for Protective Order to Quash Plaintiff's Notice (dkt. no. 145). (Danieli, Chris) (Entered: 12/15/2010)

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12/28/2010 04/28/2011 05/02/2011 05/03/2011 05/03/2011
05/03/2011 05/03/2011 06/01/2011
07/26/2011 07/27/2011
07/27/2011 08/16/2011 08/31/2011 09/01/2011 09/01/2011 09/01/2011 09/01/2011 09/01/2011

146 NOTICE by City of Boston, Boston Police Department re 145 MOTION for Protective Order to Quash Plaintiffs' Deposition Notice Is Hereby Withdrawn (Heining, Eric) (Entered: 12/28/2010)
147 NOTICE of Change of Address or Firm Name by Michael K. Clarkson (Clarkson, Michael) (Entered: 04/28/2011)
148 Joint MOTION to Amend Scheduling Order by City of Boston, Boston Police Department, Edward Davis.(Clarkson, Michael) (Entered: 05/02/2011)
Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 148 Motion to Amend Scheduling Order (Danieli, Chris) (Entered: 05/03/2011)
Reset Deadlines: Fact Witness Depositions due by 5/16/2011. Rebuttal Expert Reports due by 5/20/2011. Expert Depositions due by 7/22/2011. Requests for Admissions due by 6/3/2011 and Responses due by 7/8/2011. Summary Judgment Motions due by 8/12/2011, Opposition briefs due by 9/16/2011, and Reply Briefs due by 10/14/2011. (Danieli, Chris) (Entered: 05/03/2011)
149 NOTICE of Withdrawal of Appearance by Sean P. O'Connor (O'Connor, Sean) (Entered: 05/03/2011)
150 NOTICE of Appearance by Michael K. Clarkson on behalf of City of Boston, Boston Police Department, Edward Davis (Clarkson, Michael) (Entered: 05/03/2011)
151 NOTICE of Appearance by Deana K. El−Mallawany on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (El−Mallawany, Deana) (Entered: 06/01/2011)
152 Assented to MOTION to Amend Scheduling Order by City of Boston, Boston Police Department, Edward Davis.(Clarkson, Michael) (Entered: 07/26/2011)
Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 152 Motion to Amend Scheduling Order. Summary Judgment Motions due by 9/1/2011. Opposition Briefs due by 10/7/2011. Reply Briefs due by 11/4/2011. (Danieli, Chris) (Entered: 07/27/2011)
Reset Deadlines: Summary Judgment Motions due by 9/1/2011. Opposition Briefs due by 10/7/2011. Reply Briefs due by 11/4/2011. (Danieli, Chris) (Entered: 07/27/2011)
Judge George A. OToole, Jr: ELECTRONIC ORDER entered As the issue has been resolved, finding as moot 145 Motion for Protective Order (Lyness, Paul) (Entered: 08/16/2011)
153 Joint MOTION for Leave to File Excess Pages In Summary Judgment Memoranda Due September 1, 2011 by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 08/31/2011)
154 MOTION for Summary Judgment by City of Boston, Boston Police Department, Edward Davis.(Clarkson, Michael) (Entered: 09/01/2011)
155 MEMORANDUM in Support re 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Clarkson, Michael) (Entered: 09/01/2011)
156 Statement of Material Facts L.R. 56.1 re 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Clarkson, Michael) (Entered: 09/01/2011)
157 AFFIDAVIT of Roberta Mullan in Support re 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 1)(Clarkson, Michael) (Entered: 09/01/2011)
158 AFFIDAVIT of Marisela Perez in Support re 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Clarkson, Michael) (Entered: 09/01/2011)

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09/01/2011 09/01/2011 09/01/2011 09/01/2011 09/01/2011 09/01/2011
09/01/2011
09/01/2011 09/02/2011 09/16/2011
09/19/2011 09/19/2011

159 AFFIDAVIT of Lieutenant Stephen Meade in Support re 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Clarkson, Michael) (Entered: 09/01/2011)
160 MOTION for Partial Summary Judgment by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Heining, Eric) (Entered: 09/01/2011)
161 MEMORANDUM in Support re 160 MOTION for Partial Summary Judgment filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Heining, Eric) (Entered: 09/01/2011)
162 STATEMENT of facts re 160 MOTION for Partial Summary Judgment. (Heining, Eric) (Entered: 09/01/2011)
163 AFFIDAVIT of Michael Clarkson in Support re 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 1−6, # 2 Exhibit 7−14, # 3 Exhibit 15−21, # 4 Exhibit 22−23, # 5 Exhibit 24−25)(Clarkson, Michael) (Entered: 09/01/2011)
164 DECLARATION re 160 Motion for Partial Summary Judgment by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3, # 4 Exhibit A4, # 5 Exhibit A5, # 6 Exhibit B1, # 7 Exhibit B2, # 8 Exhibit B3, # 9 Exhibit B4, # 10 Exhibit B5, # 11 Exhibit B6, # 12 Exhibit B7, # 13 Exhibit B8, # 14 Exhibit B9, # 15 Exhibit B10, # 16 Exhibit B11, # 17 Exhibit B12, # 18 Exhibit B13, # 19 Exhibit C1, # 20 Exhibit C2, # 21 Exhibit C3, # 22 Exhibit C4, # 23 Exhibit D1, # 24 Exhibit D2, # 25 Exhibit E1, # 26 Exhibit E2, # 27 Exhibit E3, # 28 Exhibit E4, # 29 Exhibit E5, # 30 Exhibit F1)(Heining, Eric) Modified on 9/2/2011 removing link to statement of facts and creating a link to the Motion (Danieli, Chris). (Entered: 09/01/2011)
165 DECLARATION of Alan A. Shapiro in Support of Plaintiffs' 160 Motion for Partial Summary Judgment by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Heining, Eric) Modified on 9/2/2011 creating a link to the Motion for Partial Summary Judgment (Danieli, Chris). (Entered: 09/01/2011)
166 Request for Judicial Notice by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Heining, Eric) (Entered: 09/01/2011)
167 CERTIFICATE OF SERVICE pursuant to LR 5.2 by City of Boston, Boston Police Department, Edward Davis re 158 Affidavit in Support of Motion, 157 Affidavit in Support of Motion, 159 Affidavit in Support of Motion. (Clarkson, Michael) (Entered: 09/02/2011)
Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting Nunc Pro Tunc 153 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lyness, Paul) (Entered: 09/16/2011)
168 MEMORANDUM in Support re 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Clarkson, Michael) (Entered: 09/19/2011)
169 Joint MOTION to Amend Scheduling Order by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Heining, Eric) (Entered:

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 50 of 72

09/20/2011 09/20/2011 11/07/2011 11/07/2011 11/07/2011 11/10/2011
11/10/2011
11/10/2011 11/11/2011
11/11/2011 11/11/2011
11/11/2011

09/19/2011)
Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 169 Motion to Amend (Danieli, Chris) (Entered: 09/20/2011)
Reset Deadlines as to 154 MOTION for Summary Judgment. Responses due by 11/7/2011 Replies due by 12/7/2011. (Danieli, Chris) (Entered: 09/20/2011)
170 Joint MOTION for Extension of Time to November 10, 2011 to File Briefs in Opposition to Parties' Motions for Judgment by City of Boston, Boston Police Department.(Litsas, Helen) (Entered: 11/07/2011)
Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 170 Motion for Extension of Time to File (Danieli, Chris) (Entered: 11/07/2011)
Reset Deadlines as to 160 MOTION for Partial Summary Judgment, 154 MOTION for Summary Judgment. Responses due by 11/10/2011 (Danieli, Chris) (Entered: 11/07/2011)
171 Opposition re 154 MOTION for Summary Judgment filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Heining, Eric) (Entered: 11/10/2011)
172 AFFIDAVIT in Opposition re 154 MOTION for Summary Judgment filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit)(Heining, Eric) (Entered: 11/10/2011)
173 Opposition re 160 MOTION for Partial Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 11/10/2011)
174 MOTION to Seal Exhibits to Opposition Brief by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Heining, Eric) (Entered: 11/11/2011)
175 MEMORANDUM in Opposition re 160 MOTION for Partial Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 11/11/2011)
176 Counter Statement of Material Facts L.R. 56.1 re 154 MOTION for Summary Judgment filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Heining, Eric) (Entered: 11/11/2011)
177 AFFIDAVIT in Opposition re 154 MOTION for Summary Judgment filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit O−1.1, # 2 Exhibit O−1.2, # 3 Exhibit O−1.3, # 4 Exhibit O−1.4, # 5 Exhibit O−2, # 6 Exhibit O−3, # 7 Exhibit O−4, # 8 Exhibit O−5, # 9 Exhibit O−6, # 10 Exhibit O−7.1, # 11 Exhibit O−7.2, # 12 Exhibit O−8, # 13 Exhibit O−9, # 14 Exhibit O−10, # 15 Exhibit O−11, # 16 Exhibit O−12, # 17 Exhibit O−13, # 18 Exhibit O−14, # 19 Exhibit O−15, # 20 Exhibit O−16, # 21 Exhibit O−17.1, # 22 Exhibit O−17.2, # 23 Exhibit O−18, # 24 Exhibit O−19, # 25 Exhibit O−20, # 26 Exhibit O−21, # 27 Exhibit O−22, # 28 Exhibit O−23, # 29 Exhibit O−24, # 30 Exhibit O−25.1, # 31 Exhibit O−25.2, # 32 Exhibit O−26, # 33 Exhibit O−27, # 34 Exhibit O−28, # 35 Exhibit O−29, # 36 Exhibit O−30, # 37 Exhibit O−31, # 38 Exhibit O−32, # 39 Exhibit O−33, # 40 Exhibit O−34, # 41 Exhibit O−35, # 42 Exhibit O−36, # 43 Exhibit O−37, # 44 Exhibit O−38, # 45 Exhibit O−39, # 46 Exhibit O−40, # 47 Exhibit O−41, # 48 Exhibit O−42, # 49 Exhibit O−43, # 50 Exhibit O−44, # 51 Exhibit O−45, # 52 Exhibit O−46, # 53 Exhibit O−47, # 54 Exhibit O−48, # 55 Exhibit O−49, # 56 Exhibit O−50, # 57 Exhibit O−51, # 58 Exhibit O−52, # 59 Exhibit O−53, # 60 Exhibit

Case: 1:05-cv-11832 As of: 05/10/2020 01:30 PM EDT 51 of 72

11/11/2011 11/11/2011 12/07/2011 12/07/2011 12/07/2011 12/07/2011 12/07/2011
12/07/2011
12/07/2011

O−54, # 61 Exhibit O−55, # 62 Exhibit O−56, # 63 Exhibit O−57, # 64 Exhibit O−58, # 65 Exhibit O−59, # 66 Exhibit O−60, # 67 Exhibit O−61.1, # 68 Exhibit O−61.2, # 69 Exhibit O−61.3, # 70 Exhibit O−61.4, # 71 Exhibit O−61.5, # 72 Exhibit O−61.6, # 73 Exhibit O−62.1, # 74 Exhibit O−62.2, # 75 Exhibit O−63, # 76 Exhibit O−64, # 77 Exhibit O−65.1, # 78 Exhibit O−65.2, # 79 Exhibit O−65.3, # 80 Exhibit O−65.4, # 81 Exhibit O−65.5, # 82 Exhibit O−66, # 83 Exhibit O−67.1, # 84 Exhibit O−67.2, # 85 Exhibit O−68, # 86 Exhibit O−69, # 87 Exhibit O−70, # 88 Exhibit O−71, # 89 Exhibit O−72, # 90 Exhibit O−73, # 91 Exhibit O−74, # 92 Exhibit O−75, # 93 Exhibit O−76, # 94 Exhibit O−77, # 95 Exhibit O−78, # 96 Exhibit O−79, # 97 Exhibit O−80, # 98 Exhibit O−81, # 99 Exhibit O−82, # 100 Exhibit O−83, # 101 Exhibit O−84, # 102 Exhibit O−85.1, # 103 Exhibit O−85.2, # 104 Exhibit O−85.3, # 105 Exhibit O−86, # 106 Exhibit O−87, # 107 Exhibit O−88.1, # 108 Exhibit O−88.2, # 109 Exhibit O−88.3, # 110 Exhibit O−89, # 111 Exhibit O−90, # 112 Exhibit O−91, # 113 Exhibit O−92, # 114 Exhibit O−93, # 115 Exhibit O−94, # 116 Exhibit O−95.1, # 117 Exhibit O−95.2, # 118 Exhibit O−95.3, # 119 Exhibit O−95.4, # 120 Exhibit O−95.5, # 121 Exhibit O−96, # 122 Exhibit O−97, # 123 Exhibit O−98, # 124 Exhibit O−99)(Heining, Eric) (Entered: 11/11/2011)
178 Counter Statement of Material Facts L.R. 56.1 re 160 MOTION for Partial Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 11/11/2011)
179 AFFIDAVIT in Opposition re 160 MOTION for Partial Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Litsas, Helen) (Entered: 11/11/2011)
181 MOTION to Strike 176 Statement of Material Facts L.R. 56.1, or, in the Alternative, Motion for Leave to Oppose Plaintiffs' Statement of Material Facts by City of Boston, Boston Police Department, Edward Davis.(Clarkson, Michael) (Entered: 12/07/2011)
182 MEMORANDUM in Support re 181 MOTION to Strike 176 Statement of Material Facts L.R. 56.1, or, in the Alternative, Motion for Leave to Oppose Plaintiffs' Statement of Material Facts filed by City of Boston, Boston Police Department, Edward Davis. (Clarkson, Michael) (Entered: 12/07/2011)
183 Response by City of Boston, Boston Police Department, Edward Davis to 176 Statement of Material Facts L.R. 56.1, . (Clarkson, Michael) (Entered: 12/07/2011)
184 REPLY to Response to 160 MOTION for Partial Summary Judgment filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Heining, Eric) (Entered: 12/07/2011)
185 Statement of Material Facts L.R. 56.1 re 160 MOTION for Partial Summary Judgment PLAINTIFFS RESPONSE TO DEFENDANTS STATEMENT OF ADDITIONAL FACTS IN RESPONSE TO PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Heining, Eric) (Entered: 12/07/2011)
186 DECLARATION re 184 Reply to Response to Motion, DECLARATION OF ERIC HEINING IN SUPPORT OF PLAINTIFFS REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit R−1, # 2 Exhibit R−2, # 3 Exhibit R−3, # 4 Exhibit R−4, # 5 Exhibit R−5, # 6 Exhibit R−6, # 7 Exhibit R−7, # 8 Exhibit R−8, # 9 Exhibit R−9, # 10 Exhibit R−10, # 11 Exhibit R−11, # 12 Exhibit R−12, # 13 Exhibit R−13, # 14 Exhibit R−14, # 15 Exhibit R−15)(Heining, Eric) (Entered: 12/07/2011)
187 REPLY to Response to 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Main Document 187 replaced on 12/8/2011) (Danieli, Chris). (Entered: 12/07/2011)

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12/21/2011
01/19/2012 02/15/2012 05/07/2012 06/04/2012 06/15/2012
07/19/2012
07/19/2012 09/28/2012 09/28/2012 09/28/2012 10/23/2012

188 Opposition re 181 MOTION to Strike 176 Statement of Material Facts L.R. 56.1, or, in the Alternative, Motion for Leave to Oppose Plaintiffs' Statement of Material Facts filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit A)(Heining, Eric) (Entered: 12/21/2011)
189 NOTICE of Appearance by Elizabeth M. Sartori on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Sartori, Elizabeth) (Entered: 01/19/2012)
Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 174 Motion to Seal (Lyness, Paul) (Entered: 02/15/2012)
ELECTRONIC NOTICE Setting Hearing on Motion 160 MOTION for Partial Summary Judgment, 154 MOTION for Summary Judgment : Motion Hearing set for 6/13/2012 02:00 PM in Courtroom 9 before Judge George A. OToole Jr.. Please mark your calendars accordingly.(Lyness, Paul) (Entered: 05/07/2012)
ELECTRONIC NOTICE Resetting Hearing on Motion 160 MOTION for Partial Summary Judgment, 154 MOTION for Summary Judgment : Motion Hearing set for 6/15/2012 10:00 AM in Courtroom 9 before Judge George A. OToole Jr.. Please make the change in your calendars. (Lyness, Paul) (Entered: 06/04/2012)
ELECTRONIC Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Motion Hearing held on 6/15/2012 re 160 MOTION for Partial Summary Judgment filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade, 154 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. The court takes the matter under advisement. (Court Reporter: Richard Romanow at bulldog@richromanow.com.)(Attorneys present: For Plaintiffs: Eric Heining, Doreen Rachal, Laura Maslow−Armand; For Defendants: Helen Litsas, Michael Clarkson) (Lyness, Paul) (Entered: 06/15/2012)
190 Transcript of Summary Judgment held on June 15, 2012, before Judge George A. OToole. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Richard Romanow at bulldog@richromanow.com Redaction Request due 8/9/2012. Redacted Transcript Deadline set for 8/20/2012. Release of Transcript Restriction set for 10/17/2012. (Scalfani, Deborah) (Entered: 07/19/2012)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/19/2012)
191 Judge George A. OToole, Jr: OPINION AND ORDER entered granting 154 Motion for Summary Judgment; denying 160 Motion for Partial Summary Judgment; denying 181 Motion to Strike (Lyness, Paul) (Entered: 10/01/2012)
192 Judge George A. OToole, Jr: ORDER entered. JUDGMENT (Lyness, Paul) (Lyness, Paul). (Entered: 10/01/2012)
193 Notice of correction to docket made by Court staff. Correction: The judgment dated 9/28/12 corrected because: Wrong document attached. (Lyness, Paul) (Entered: 10/01/2012)
194 NOTICE OF APPEAL as to 191 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment, Order on Motion to Strike, 192 Judgment by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington Filing fee: $ 455, receipt number 0101−4171450 Fee Status: Not Exempt.

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10/23/2012 10/24/2012
11/06/2012 10/02/2013 05/07/2014
05/07/2014
06/23/2014
06/25/2014 06/25/2014 07/21/2014 07/21/2014 09/02/2014 09/19/2014

NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 11/13/2012. (Rachal, Doreen) (Entered: 10/23/2012)
195 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 194 Notice of Appeal, (Ramos, Jeanette) (Entered: 10/23/2012)
196 USCA Case Number 12−2280 for 194 Notice of Appeal, filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade. (Ramos, Jeanette) (Entered: 10/24/2012)
197 NOTICE of Withdrawal of Appearance by Eric A. Heining on behalf of Plaintiffs (Heining, Eric) (Entered: 11/06/2012)
199 Supplemental Record on Appeal transmitted to US Court of Appeals re 194 Notice of Appeal Documents included: Sealed Exhibits ECF No. 177 (Paine, Matthew) (Entered: 10/02/2013)
201 OPINION of USCA as to 194 Notice of Appeal filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade. (Paine, Matthew) (Entered: 05/07/2014)
202 USCA Judgment as to 194 Notice of Appeal filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade.The judgment of the district court is vacated in part, reversed in part, and affirmed in part, and the matter is remanded for further proceedings consistent withthe opinion issued this day. The district court is directed to decide at the time of final judgment whether costs of this appeal are to be shifted in favor of a finally previaling party under any applicable statute. (Paine, Matthew) (Entered: 05/07/2014)
203 MANDATE of USCA as to 194 Notice of Appeal filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade. Appeal 194 Terminated (Paine, Matthew) (Entered: 06/24/2014)
204 Case Reopened per 203 (Duong, Diep) (Entered: 06/25/2014)
205 Appeal Record Returned: 194 Notice of Appeal (Sealed Documents) (Paine, Matthew) (Entered: 06/25/2014)
206 Judge George A. OToole, Jr: ELECTRONIC ORDER entered. Pursuant to Local Rule 40.1(k)(2), I direct the Clerk to randomly reassign this case to another District Judge.(Lyness, Paul) (Entered: 07/21/2014)
207 ELECTRONIC NOTICE of Reassignment. Judge Douglas P. Woodlock added. Judge George A. OToole, Jr no longer assigned to case. (Abaid, Kimberly) (Entered: 07/21/2014)
208 ELECTRONIC NOTICE of Hearing: Status/Scheduling Conference set for 10/27/2014 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. A Joint Status Report is due by 10/23/2014. (Lovett, Jarrett) (Entered: 09/02/2014)
209 NOTICE of Appearance by Jenny K. Cooper on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law

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09/19/2014 09/22/2014 10/23/2014 10/27/2014 10/27/2014
11/14/2014 12/05/2014
12/05/2014 12/10/2014 12/10/2014 12/10/2014 12/11/2014

Enforcement Officers, Eugene Wade, Walter R. Washington (Cooper, Jenny) (Entered: 09/19/2014)
210 NOTICE of Appearance by Amanda V. Muller on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Muller, Amanda) (Entered: 09/19/2014)
211 NOTICE of Appearance by Matthew T. Bohenek on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Bohenek, Matthew) (Entered: 09/22/2014)
212 JOINT STATEMENT of counsel . (Litsas, Helen) (Entered: 10/23/2014)
213 NOTICE of Appearance by John F. Adkins on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Adkins, John) (Entered: 10/27/2014)
214 ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Status/Scheduling Conference held on 10/27/2014; no request to expand the record; Court Orders an agreed upon record and deft's memorandum in support with statement of facts due by 12/10/14; pltff's response due by 1/10/15; deft's replt due by 2/10/15; a Summary Judgment hearing is set for 3/11/2015 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Court Reporter: Brenda Hancock at 617−439−3214.)(Attorneys present: Adkins, Bohenek, Cooper, Litsas, and Maslow−Armand) (Lovett, Jarrett) (Entered: 10/27/2014)
215 Notice of Withdrawal of Apprearance as to Louis A. Rodriques by Ronnie Jones.(Rodriques, Louis) Modified docket text to reflect document is not a motion on 11/14/2014 (Moore, Kellyann). (Entered: 11/14/2014)
216 Transcript of Status and Scheduling Conference held on October 27, 2014, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at 617−439−3214 Redaction Request due 12/26/2014. Redacted Transcript Deadline set for 1/5/2015. Release of Transcript Restriction set for 3/5/2015. (Scalfani, Deborah) (Entered: 12/05/2014)
217 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/05/2014)
218 MOTION for Summary Judgment by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 12/10/2014)
219 MEMORANDUM in Support re 218 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 12/10/2014)
220 Statement of Material Facts L.R. 56.1 re 218 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Main Document 220 replaced on 12/12/2014) (Lovett, Jarrett). (Entered: 12/10/2014)
221 AFFIDAVIT in Support re 220 Statement of Material Facts L.R. 56.1 . (Attachments: # 1 Exhibit 41A, # 2 Exhibit 39, # 3 Exhibit 7, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 41I, # 14 Exhibit 41B, # 15 Exhibit 41C, # 16 Exhibit 41E, # 17 Exhibit 41F, # 18 Exhibit 32, # 19 Exhibit 37, # 20 Exhibit 34, # 21 Exhibit 41D)(Litsas, Helen) (Entered: 12/11/2014)

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12/11/2014 12/11/2014 12/11/2014 12/15/2014 12/15/2014 12/18/2014 12/18/2014
12/19/2014
12/19/2014 12/22/2014 01/08/2015
01/08/2015 01/12/2015
01/12/2015

222 MOTION to Seal Document Supporting Defendants' Motion for Summary Judgment by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 12/11/2014)
223 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 222 Motion to Seal Exhibits in Support re 218 MOTION for Summary Judgment by City of Boston, Boston Police Department, Edward Davis . (Lovett, Jarrett) (Entered: 12/11/2014)
224 Set/Reset Deadlines as to 218 MOTION for Summary Judgment . Response due by 1/12/2015; Reply due by 2/10/2015. Hearing set for 3/11/2015 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 12/11/2014)
225 MOTION for Clarification by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 12/15/2014)
226 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 225 Motion for Clarification; plaintif's exhibits should be filed in the bound version, and then concurrently with opposition submissions. (Lovett, Jarrett) (Entered: 12/15/2014)
229 Record of Exhibits in support of 218 MOTION for Summary Judgment by City of Boston, Boston Police Department, Edward Davis received by Clerk's office. (Four bound documents) (Moore, Kellyann) (Entered: 12/19/2014)
230 SEALED Exhibits 52−60 re 220 Statement of Material Facts L.R. 56.1 re 218 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 52 part 2, # 2 Exhibit 52 part 3, # 3 Exhibit 52 part 4, # 4 Exhibit 52 part 5, # 5 Exhibit 52 part 6, # 6 Exhibit 52 part 7, # 7 Exhibit 52 part 8, # 8 Exhibit 52 part 9, # 9 Exhibit 52 part 10, # 10 Exhibit 52 part 11, # 11 Exhibit 52 part 12, # 12 Exhibit 52 part 13, # 13 Exhibit 53, # 14 Exhibit 54, # 15 Exhibit 55, # 16 Exhibit 56, # 17 Exhibit 57, # 18 Exhibit 58, # 19 Exhibit 59, # 20 Exhibit 60)(Moore, Kellyann) (Entered: 12/22/2014)
227 Assented to MOTION to Withdraw as Attorney [filed by Jenny K. Cooper, Matthew T. Bohenek, Amanda V. McGee and Elizabeth M. Sartori] by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Cooper, Jenny) (Entered: 12/19/2014)
228 NOTICE of Change of Address or Firm Name by John F. Adkins (Adkins, John) (Entered: 12/19/2014)
231 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 227 Motion to Withdraw as Attorney. Attorneys Amanda V. McGee, Elizabeth M. Sartori, Matthew T. Bohenek, and Jenny K. Cooper terminated. (Lovett, Jarrett) (Entered: 12/22/2014)
232 MOTION for Leave to File Excess Pages regarding Opposition to Defendants' Motion for Summary Judgment by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Adkins, John) (Entered: 01/08/2015)
233 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 232 Plaintiff's Motion for Leave to File Excess Pages. (Lovett, Jarrett) (Entered: 01/08/2015)
234 Opposition re 218 MOTION for Summary Judgment filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 01/12/2015)
235 RESPONSE to Motion re 218 MOTION for Summary Judgment (Plaintiffs' Consolidated Statement of Facts) filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 01/12/2015)

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236 EXHIBIT re 234 Opposition to Motion, (Exhibit A) by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 01/12/2015)
237 EXHIBIT re 234 Opposition to Motion, (Exhibit B) by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 01/12/2015)
238 EXHIBIT re 234 Opposition to Motion, (Exhibit C) by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 01/12/2015)
239 EXHIBIT re 234 Opposition to Motion, (Exhibit D) by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 01/12/2015)
240 EXHIBIT re 234 Opposition to Motion, (Exhibit E) by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 01/12/2015)
241 EXHIBIT re 234 Opposition to Motion, (Exhibit F) by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 01/12/2015)
242 DECLARATION re 234 Opposition to Motion, by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Ex. 1 (part 1 of 2), # 2 Ex. 1 (part 2 of 2), # 3 Ex. 2 (part 1 of 2), # 4 Ex. 2 (part 2 of 2), # 5 Ex. 3 (part 1 of 3), # 6 Ex. 3 (part 2 of 3), # 7 Ex. 3 (part 3 of 3), # 8 Ex. 4 (part 1 of 3), # 9 Ex. 4 (part 2 of 3), # 10 Ex. 4 (part 3 of 3))(Adkins, John) (Entered: 01/12/2015)
243 DECLARATION re 234 Opposition to Motion, by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Ex. 5 (part 1 of 2), # 2 Ex. 5 (part 2 of 2), # 3 Ex. 6 (part 1 of 2), # 4 Ex. 6 (part 2 of 2), # 5 Ex. 7 (part 1 of 2), # 6 Ex. 7 (part 2 of 2), # 7 Ex. 8, # 8 Ex. 9 (part 1 of 2), # 9 Ex. 9 (part 2 of 2), # 10 Ex. 10, # 11 Ex. 11, # 12 Ex. 12, # 13 Ex. 13, # 14 Ex. 14, # 15 Ex. 15, # 16 Ex. 16, # 17 Ex. 17, # 18 Ex. 18, # 19 Ex. 19, # 20 Ex. 20, # 21 Ex. 21, # 22 Ex. 22, # 23 Ex. 23, # 24 Ex. 24, # 25 Ex. 25, # 26 Ex. 26)(Adkins, John) (Entered: 01/12/2015)
244 DECLARATION re 234 Opposition to Motion, by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Ex. 27 (part 1 of 2), # 2 Ex. 27 (part 2 of 2), # 3 Ex. 28, # 4 Ex. 29, # 5 Ex. 30, # 6 Ex. 31, # 7 Ex. 32 (part 1 of 2), # 8 Ex. 32 (part 2 of 2), # 9 Ex. 33, # 10 Ex. 34, # 11 Ex. 35, # 12 Ex. 36, # 13 Ex. 37 (part 1 of 3), # 14 Ex. 37 (part 2 of 3), # 15 Ex. 37 (part 3 of 3), # 16 Ex. 38, # 17 Ex. 39 (part 1 of 2), # 18 Ex. 39 (part 2 of 2), # 19 Ex. 40, # 20 Ex. 41, # 21 Ex. 41B, # 22 Ex. 41G, # 23 Ex. 41H, # 24 Exs. 42−56, 61 (FILED UNDER SEAL))(Adkins, John) (Entered: 01/12/2015)

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245 MOTION to Seal Document 244 Declaration,,, 242 Declaration,, 243 Declaration,,, by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Adkins, John) (Entered: 01/12/2015)
246 MEMORANDUM in Opposition re 218 MOTION for Summary Judgment filed by Plaintiffs filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit AAA)(Litsas, Helen) (Entered: 02/11/2015)
247 Statement of Material Facts L.R. 56.1 re 218 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/11/2015)
248 REPLY to Response to 218 MOTION for Summary Judgment filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/12/2015)
249 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 245 Motion to Seal Exhibits. (Lovett, Jarrett) (Entered: 02/13/2015)
250 NOTICE of Withdrawal of Appearance by Michael K. Clarkson (Clarkson, Michael) (Entered: 02/18/2015)
251 Assented to MOTION for Leave to File Consolidated Response/Surreply by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit Consolidated Response)(Adkins, John) (Entered: 02/25/2015)
252 Judge Douglas P. Woodlock: ELECTRONIC ORDER entered granting 251 Assented to Motion for Leave to File Consolidated Response; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lovett, Jarrett) (Entered: 02/26/2015)
253 SUR−REPLY to Motion re 218 MOTION for Summary Judgment filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Adkins, John) (Entered: 02/26/2015)
254 ELECTRONIC NOTICE Resetting Hearing re 218 MOTION for Summary Judgment : Motion Hearing reset for 5/13/2015 02:30 PM in Courtroom 1 before Judge Douglas P. Woodlock. (Lovett, Jarrett) (Entered: 03/04/2015)
255 MOTION for Leave to File Limited Sur−Reply by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit A, # 2 Exhibit 1)(Litsas, Helen) (Entered: 05/08/2015)
256 ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Motion Hearing held on 5/13/2015; arguments heard; 218 Defendants' MOTION for Summary Judgment TAKEN UNDER ADVISEMENT; 255 Defendants' Motion for Leave to File Limited Sur−Reply − GRANTED as unopposed. (Court Reporter: Brenda Hancock at brhancock@msn.com.)(Attorneys present: Adkins, Litsas, and Maslow−Armand) (Lovett, Jarrett) (Entered: 05/14/2015)
257 Transcript of Motion Hearing held on May 13, 2015, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com Redaction Request due 6/23/2015. Redacted Transcript Deadline set for 7/3/2015. Release of Transcript Restriction set for 8/31/2015. (Scalfani, Deborah) Modified on 12/7/2015 (Scalfani, Deborah). (Entered: 06/02/2015)
258 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's

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Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/02/2015)
259 Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 218 Motion for Summary Judgment (Woodlock, Douglas) (Entered: 08/06/2015)
260 Judge Douglas P. Woodlock: ORDER entered. JUDGMENT for defendants against plaintiffs. (Lovett, Jarrett) (Entered: 08/07/2015)
261 NOTICE OF APPEAL as to 259 Order on Motion for Summary Judgment, 260 Judgment by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington Filing fee: $ 505, receipt number 0101−5725629 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 9/21/2015. (Maslow−Armand, Laura) (Entered: 09/01/2015)
262 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 261 Notice of Appeal. (Paine, Matthew) (Entered: 09/02/2015)
263 USCA Case Number 15−2015 for 261 Notice of Appeal filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade. (Paine, Matthew) (Entered: 09/03/2015)
264 TRANSCRIPT ORDER FORM by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers for proceedings held on 05−13−2015 Judge Judge Douglas P. Woodlock.. (Maslow−Armand, Laura) (Entered: 09/17/2015)
265 NOTICE of Appearance by Jared B. Cohen on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Cohen, Jared) (Entered: 12/09/2015)
266 NOTICE of Appearance by Eric D. Wolkoff on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Wolkoff, Eric) (Entered: 12/09/2015)
267 NOTICE of Appearance by Lisa J. Pirozzolo on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Pirozzolo, Lisa) (Entered: 12/09/2015)
268 NOTICE of Appearance by Jeffrey Olshan on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Olshan, Jeffrey) (Entered: 01/28/2016)
269 OPINION of USCA as to 261 Notice of Appeal filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law

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12/28/2016

Enforcement Officers, William E. Bridgeforth, Eugene Wade. (Paine, Matthew) (Entered: 12/29/2016)
270 USCA Judgment as to 261 Notice of Appeal filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade.

The district court's ruling on summary judgment that the Department's use of the hair test was job related and consistent with business necessity is AFFIRMED. The district court's granting of summary judgment to the Department on the third prong of the disparate impact inquiry is VACATED AND REMANDED for further proceedings consistent with the opinion issued this day.

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(Paine, Matthew) (Entered: 12/29/2016)
271 MANDATE of USCA as to 261 Notice of Appeal filed by Ronnie Jones, Richard Beckers, Keri Hogan, Rachelle Couch, Clararise Bristow, Shawn N. Harris, Walter R. Washington, Georger C. Downing, Jr., Massachusetts Association of Minority Law Enforcement Officers, William E. Bridgeforth, Eugene Wade. Appeal 261 Terminated (Paine, Matthew) (Entered: 01/27/2017)
272 Judge Douglas P. Woodlock: Having determined, pursuant to Local Rule 40.1(k)(2), that there would be substantial saving in the time of the whole court and there is no reason why, in the interest of justice, further proceedings should be conducted before another judge, this session will retain this matter for further proceedings. Accordingly, parties shall file a joint status/scheduling report addressing how this case can now be brought to final judgment no later than 2/17/2017. A status conference is scheduled for 2/21/2017 at 2:15 p.m. in Courtroom 1 before Judge Douglas P. Woodlock.(Beatty, Barbara) (Entered: 01/31/2017)
273 NOTICE of Appearance by Alexandra Rueckle Reynolds on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Reynolds, Alexandra) Modified on 2/15/2017 (Jones, Sherry). (Entered: 02/13/2017)
274 NOTICE of Appearance by Oren M. Sellstrom on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Sellstrom, Oren) (Entered: 02/15/2017)
275 JOINT STATEMENT of counsel concerning case status. (Pirozzolo, Lisa) (Entered: 02/17/2017)
276 MOTION for Leave to File Motion to Amend Answer by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 02/21/2017)
277 MEMORANDUM in Support re 276 MOTION for Leave to File Motion to Amend Answer filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit A)(Litsas, Helen) (Entered: 02/21/2017)
278 Clerk's Notes for status conference held before Judge Douglas P. Woodlock: Court reviews Joint Report Concerning Case Status. Plaintiff to oppose motion for leave to file motion to amend answer 276 filed today. Defendants to submit rebuttal report to Dr. Kidwell by 4/21/2017; Plaintiffs to submit reply expert report by 5/19/2017; Depositions of experts to be completed by 6/18/2017. Motions for summary judgment to be filed by 7/18/2017; response to motion for summary judgment to be filed by 8/18/2017. Hearing on motions for summary judgment scheduled for 9/18/2017 at 2:30 p.m. (Court Reporter: Brenda Hancock at brhancock@msn.com.) (Beatty, Barbara) (Entered: 02/21/2017)
279 RESPONSE to Motion re 276 MOTION for Leave to File Motion to Amend Answer filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R.

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Washington. (Pirozzolo, Lisa) (Entered: 02/27/2017)
280 Judge Douglas P. Woodlock: ORDER granting 276 Defendants' Motion for Leave to File Motion to Amend Defendants' Answer, in light of the Plaintiffs' Response [ECF #279]. (Beatty, Barbara) (Entered: 02/28/2017)
281 MOTION to Amend (UNOPPOSED) by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 02/28/2017)
282 MEMORANDUM in Support re 281 MOTION to Amend (UNOPPOSED) filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit A)(Litsas, Helen) (Entered: 02/28/2017)
283 Judge Douglas P. Woodlock: ORDER granting 281 Defendants' Unopposed Motion to Amend Defendants' Answer. (Beatty, Barbara) (Entered: 03/07/2017)
284 Amended ANSWER to Complaint with Jury Demand by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 03/07/2017)
285 NOTICE of Withdrawal of Appearance Attorney John F. Adkins terminated. (Gioia, AnaMaria) (Entered: 03/07/2017)
286 Transcript of Scheduling Conference held on February 21, 2017, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com Redaction Request due 4/7/2017. Redacted Transcript Deadline set for 4/17/2017. Release of Transcript Restriction set for 6/15/2017. (Scalfani, Deborah) (Entered: 03/17/2017)
287 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/17/2017)
288 MOTION for Leave to File Amendment To Scheduling Order and File Defendants' Motion for Judgment on the Pleadings by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 03/27/2017)
289 MEMORANDUM in Support re 288 MOTION for Leave to File Amendment To Scheduling Order and File Defendants' Motion for Judgment on the Pleadings filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−A, # 3 Exhibit 1−B, # 4 Exhibit 1−C, # 5 Exhibit 1−D)(Litsas, Helen) (Entered: 03/27/2017)
290 PROCEDURAL ORDER AND NOTICE OF HEARING: A Hearing on the Defendants' Motion 288 for Leave to Amend the Scheduling Order and File Defendants' Motion for Judgment on the Pleadings is scheduled for 4/6/2017 at 10:30 a.m. in Courtroom 1 before Judge Douglas P. Woodlock. Any opposition/responses to the Motion for Leave to Amend shall be filed no later than 12:00 noon on 4/4/2017.(Beatty, Barbara) (Entered: 03/28/2017)
291 Opposition re 288 MOTION for Leave to File Amendment To Scheduling Order and File Defendants' Motion for Judgment on the Pleadings filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Pirozzolo, Lisa) (Entered: 04/04/2017)
292 MOTION for Judgment on the Pleadings by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 04/06/2017)
293 MEMORANDUM in Support re 292 MOTION for Judgment on the Pleadings filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Litsas, Helen) (Entered: 04/06/2017)
294 Clerk's Notes for Hearing held before Judge Douglas P. Woodlock: Court hears argument on Defendants' Motion for Leave to Amend the Scheduling Order and File Defendants' Motion for Judgment on the Pleadings 288 . Court will not amend the

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scheduling order and the present schedule remains in place and will leave it to the defendants to determine if they will file a motion for judgment on the pleadings. Non−jury trial will be scheduled at the appropriate time. (Court Reporter: Brenda Hancock at brhancock@msn.com.) (Beatty, Barbara) (Entered: 04/10/2017)
295 MOTION for Extension of Time to 04/28/2017 to File Response/Reply as to 292 MOTION for Judgment on the Pleadings by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Pirozzolo, Lisa) (Entered: 04/11/2017)
296 Judge Douglas P. Woodlock: ORDER granting 295 Plaintiffs' Unopposed Motion for Extension of Time to Oppose Defendants' Motion for Judgment on the Pleadings until 4/28/2017. (Beatty, Barbara) (Entered: 04/12/2017)
297 Transcript of Motion Hearing held on April 6, 2017, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com Redaction Request due 5/9/2017. Redacted Transcript Deadline set for 5/19/2017. Release of Transcript Restriction set for 7/17/2017. (Scalfani, Deborah) (Entered: 04/18/2017)
298 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 04/18/2017)
299 MEMORANDUM in Opposition re 292 MOTION for Judgment on the Pleadings filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Reynolds, Alexandra) (Entered: 04/28/2017)
300 AFFIDAVIT in Opposition re 292 MOTION for Judgment on the Pleadings filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Reynolds, Alexandra) (Entered: 04/28/2017)
301 Judge Douglas P. Woodlock: ORDER re 292 Defendants' Motion for Judgment on the Pleadings − DENIED, without prejudice to incorporation of the contentions made in this motion in the summary judgment motion practice previously scheduled. (Beatty, Barbara) (Entered: 05/03/2017)
Case reopened. (Nicewicz, Craig) (Entered: 06/06/2017)
302 NOTICE of Appearance by Susan M. Weise on behalf of City of Boston, Boston Police Department, Edward Davis (Weise, Susan) (Entered: 06/13/2017)
303 Joint MOTION for Referral to Mediation by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Reynolds, Alexandra) (Entered: 06/14/2017)
304 Judge Douglas P. Woodlock: ORDER REFERRING CASE to Alternative Dispute Resolution. Court GRANTS 303 Joint Motion for Referral to Mediation. (Beatty, Barbara) (Entered: 06/26/2017)
305 Notice of assignment to ADR Provider. Judge Jennifer C. Boal appointed.(Garvin, Brendan) (Entered: 06/27/2017)
306 ELECTRONIC NOTICE of Hearing. The Alternative Dispute Resolution Hearing is set for August 4, 2017 at 10:00 a.m. in Courtroom 14 before Magistrate Judge Jennifer C. Boal. Counsel and principals are directed to be present and have full settlement

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07/21/2017 07/22/2017
07/22/2017 07/22/2017

authority. Each party must submit a brief (no more than 5 pages) mediation memorandum that includes a discussion of (1) the merits of the case (both strengths and weaknesses); (2) damages or other relief sought by the parties; (3) the status of discovery; and (4) the status of the parties' settlement discussions. The memoranda should be submitted BY HAND, E−MAIL to (steve_york@mad.uscourts.gov), OR MAIL WITH THE COURT on or before July 27, 2017 and marked "Confidential − Not for Docketing." In the event that any party believes that the case is not ripe for mediation, or the date poses a serious conflict, counsel are to notify opposing counsel and call the deputy clerk at 617−748−9238 as soon as possible. Prior to the mediation, there will be a Telephone Conference set for July 28, at 3:30 p.m. in Courtroom 14 before Magistrate Judge Jennifer C. Boal. The clerk will provide the call in information to all parties by email, one day prior to the upcoming telephone conference. (York, Steve) (Entered: 06/30/2017)
307 Joint MOTION for Leave to File Excess Pages for Summary Judgment Brief by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 07/10/2017)
308 Judge Douglas P. Woodlock: ORDER granting 307 Joint Motion for Enlargement of Page Length of Parties' Motion for Summary Judgment Brief and Opposition by 15 pages. (Beatty, Barbara) (Entered: 07/11/2017)
309 Assented to MOTION for Extension of Time to 7/21/17 to File Defendants' Motion for Summary Judgement by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 07/18/2017)
310 Judge Douglas P. Woodlock: ORDER granting 309 Assented to Motion to Extend Time to File Defendants' Motion for Summary Judgment until 7/21/2017 and the Plaintiff's Opposition to such motion shall be filed no later than 8/23/2017. (Beatty, Barbara) (Entered: 07/18/2017)
311 MOTION for Summary Judgment by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Memorandum)(Litsas, Helen) On 8/24/2017 modified to edit docket text and to separately file the memorandum of law. Please see document entry no. 328 for supporting memorandum. (Gioia, AnaMaria). (Entered: 07/21/2017)
312 Statement of Material Facts L.R. 56.1 re 311 MOTION for Summary Judgment and Memorandum of Law filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 07/21/2017)
313 AFFIDAVIT of Helen G. Litsas in Support re 311 MOTION for Summary Judgment and Memorandum of Law filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, # 14 Exhibit 22)(Litsas, Helen) (Entered: 07/22/2017)
328 MEMORANDUM in Support of 311 MOTION for Summary Judgment and Memorandum of Law filed by City of Boston, Boston Police Department, Edward Davis. (Gioia, AnaMaria) (Entered: 08/24/2017)
314 AFFIDAVIT of Helen G. Litsas in Support re 311 MOTION for Summary Judgment and Memorandum of Law filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 25, # 2 Exhibit 26, # 3 Exhibit 27, # 4 Exhibit 28, # 5 Exhibit 30, # 6 Exhibit 32, # 7 Exhibit 33, # 8 Exhibit 34, # 9 Exhibit 36)(Litsas, Helen) (Entered: 07/22/2017)
315 AFFIDAVIT of Helen G. Litsas in Support re 311 MOTION for Summary Judgment and Memorandum of Law filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 41, # 2 Exhibit 43, # 3 Exhibit 44)(Litsas, Helen) (Entered: 07/22/2017)
316 AFFIDAVIT of Helen G. Litsas in Support re 311 MOTION for Summary Judgment and Memorandum of Law filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 38, # 2 Exhibit 39)(Litsas, Helen) (Entered: 07/22/2017)

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07/22/2017 07/22/2017 07/24/2017 07/28/2017
08/04/2017 08/17/2017 08/23/2017 08/23/2017 08/23/2017
08/23/2017

317 AFFIDAVIT of Helen G. Litsas in Support re 311 MOTION for Summary Judgment and Memorandum of Law filed by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit 24, # 2 Exhibit 31)(Litsas, Helen) (Entered: 07/22/2017)
318 MOTION to Seal Certain Motion for Summary Judgment Exhibits by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 07/22/2017)
319 Judge Douglas P. Woodlock: ORDER granting 318 Defendants' Motion for Leave to File Exhibits Under Seal. (Beatty, Barbara) (Entered: 07/24/2017)
320 Electronic Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Telephone Conference held on 7/28/2017. The Court reviewed preliminary matters with the parties prior to the upcoming mediation. (Court Reporter: SEALED Digital Recording) To order a copy of this Digital Recording, The parties should first seek leave of the Court. If approved, please then go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov. (Attorneys present: Reynolds, Olshan & Pirozzolo for the plaintiffs; Litsas, Ferrer & Weise for defendants;) (York, Steve) (Entered: 07/28/2017)
322 REPORT of Alternative Dispute Resolution Provider: Magistrate Judge Jennifer C. Boal reports that this case did not settle.. The case should be restored to your trial list. This Court will conduct a Phone Conference with the parties after Judge Woodlock has ruled on dispositive motions. (York, Steve) (Entered: 08/04/2017)
323 NOTICE of Appearance by Aaron Macris on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Macris, Aaron) (Entered: 08/17/2017)
324 MOTION to Seal Document Unopposed Motion for Leave to File Response to Defendants' Statement of Undisputed Material Facts and Statement of Additional Material Facts and Exhibits Under Seal by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Olshan, Jeffrey) (Entered: 08/23/2017)
325 Opposition re 311 MOTION for Summary Judgment and Memorandum of Law filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Reynolds, Alexandra) (Entered: 08/23/2017)
326 DECLARATION re 325 Opposition to Motion, Jeffrey S. Olshan Declaration in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit 45, # 2 Exhibit 46, # 3 Exhibit 47, # 4 Exhibit 48, # 5 Exhibit 49, # 6 Exhibit 51, # 7 Exhibit 52, # 8 Exhibit 53, # 9 Exhibit 54, # 10 Exhibit 55, # 11 Exhibit 56, # 12 Exhibit 57, # 13 Exhibit 58, # 14 Exhibit 59, # 15 Exhibit 60, # 16 Exhibit 61, # 17 Exhibit 62, # 18 Exhibit 63, # 19 Exhibit 64, # 20 Exhibit 65, # 21 Exhibit 66, # 22 Exhibit 67, # 23 Exhibit 68, # 24 Exhibit 69, # 25 Exhibit 70, # 26 Exhibit 71, # 27 Exhibit 72, # 28 Exhibit 73, # 29 Exhibit 74, # 30 Exhibit 75, # 31 Exhibit 76, # 32 Exhibit 77, # 33 Exhibit 78, # 34 Exhibit 79, # 35 Exhibit 80, # 36 Exhibit 81, # 37 Exhibit 82, # 38 Exhibit 83, # 39 Exhibit 84, # 40 Exhibit 85, # 41 Exhibit 86, # 42 Exhibit 50)(Olshan, Jeffrey) (Entered: 08/23/2017)
327 Response by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington to 312 Statement of Material Facts L.R. 56.1 . (Olshan, Jeffrey) (Entered: 08/23/2017)

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08/30/2017 09/18/2017
10/03/2017
10/03/2017
11/06/2017 11/06/2017 12/21/2017 01/19/2018 01/30/2018
02/05/2018 02/05/2018 02/05/2018 02/05/2018

329 Judge Douglas P. Woodlock: ORDER granting 324 Plaintiffs' Unopposed Motion for Leave to File Response to Defendants' Statement of Undisputed Material Facts and Statement of Additional Material Facts and Exhibits Under Seal. (Beatty, Barbara) (Entered: 08/30/2017)
332 Clerk's Notes for Hearing held before Judge Douglas P. Woodlock: Argument heard on 311 Motion for Summary Judgment and Motion DENIED for reasons stated in the record. Nonjury trial scheduled for 3/5/2018 (5 days). Trial Order to be issued. (Court Reporter: Brenda Hancock at brhancock@msn.com.)(Attorneys present: Pirozzolo, Wolkoff, Reynolds, Litsas) (Beatty, Barbara) (Entered: 09/21/2017)
333 Transcript of Motion Hearing held on September 18, 2017, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com Redaction Request due 10/24/2017. Redacted Transcript Deadline set for 11/3/2017. Release of Transcript Restriction set for 1/2/2018. (Scalfani, Deborah) (Entered: 10/03/2017)
334 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/03/2017)
335 Judge Douglas P. Woodlock: ORDER REGULATING NON−JURY CIVIL TRIAL − Bench Trial scheduled for 3/5/2018 at 9:00 a.m. in Courtroom 1 before Judge Douglas P. Woodlock.(Beatty, Barbara) (Entered: 11/06/2017)
336 NOTICE OF PRETRIAL CONFERENCE − Conference scheduled for 2/26/2018 at 2:30 p.m. in Courtroom 1 before Judge Douglas P. Woodlock. (Beatty, Barbara) (Entered: 11/06/2017)
337 NOTICE of Appearance by Thomas S. Fitzpatrick on behalf of City of Boston, Boston Police Department (Fitzpatrick, Thomas) (Entered: 12/21/2017)
338 NOTICE of Appearance by Nicole I. Taub on behalf of City of Boston, Boston Police Department, Edward Davis (Taub, Nicole) (Entered: 01/19/2018)
339 NOTICE of Appearance by Arjun K. Jaikumar on behalf of Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington (Jaikumar, Arjun) (Entered: 01/30/2018)
340 MOTION to Seal Document by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Reynolds, Alexandra) (Entered: 02/05/2018)
341 MOTION to Seal Document Certain Affidavits and Defendants' Response to Plaintiffs' Proposed Findings by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 02/05/2018)
342 Amended MOTION to Seal Document 341 MOTION to Seal Document Certain Affidavits and Defendants' Response to Plaintiffs' Proposed Findings by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 02/05/2018)
343 Judge Douglas P. Woodlock: ORDERS granting 340 Plaintiffs' Unopposed Motion for Leave to File Proposed Findings of Fact and Conclusions of Law and Certain Affidavits Under Seal; and, granting 342 Defendants' Amended Unopposed Motion for Leave to File Under Seal Defendants' Marked Response to Plaintiffs' Proposed Findings of Fact and Conclusions of Law, Defendants' Additional and/or Substitute Findings and Conclusions of Law and the Affidavits of Leo Kadehijian and Thomas Cairns. Per footnote 1 in Motion 342 the Motion to Seal 341 is WITHDRAWN as it "was inadvertently filed".(Beatty, Barbara) (Entered: 02/05/2018)

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02/05/2018
02/05/2018 02/05/2018 02/05/2018 02/05/2018 02/05/2018 02/05/2018 02/05/2018 02/05/2018 02/05/2018 02/05/2018 02/08/2018 02/09/2018 02/09/2018

344 Plaintiffs' Witness List by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, Georger C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Affidavit Trial Affidavit of J Michael Walsh − SEALED (1 of 8), # 2 Affidavit Trial Affidavit of J Michael Walsh − SEALED (2 of 8), # 3 Affidavit Trial Affidavit of J Michael Walsh − SEALED (3 of 8), # 4 Affidavit Trial Affidavit of J Michael Walsh − SEALED (4 of 8), # 5 Affidavit Trial Affidavit of J Michael Walsh − SEALED (5 of 8), # 6 Affidavit Trial Affidavit of J Michael Walsh − SEALED (6 of 8), # 7 Affidavit Trial Affidavit of J Michael Walsh − SEALED (7 of 8), # 8 Affidavit Trial Affidavit of J Michael Walsh − SEALED (8 of 8), # 9 Affidavit Trial Affidavit of Dr. David Kidwell (1 of 5), # 10 Affidavit Trial Affidavit of Dr. David Kidwell (2 of 5), # 11 Affidavit Trial Affidavit of Dr. David Kidwell (3 of 5), # 12 Affidavit Trial Affidavit of Dr. David Kidwell (4 of 5), # 13 Affidavit Trial Affidavit of Dr. David Kidwell (5 of 5), # 14 Affidavit Trial Affidavit of George Downing, # 15 Affidavit Trial Affidavit of William Bridgeforth, # 16 Affidavit Trial Affidavit of Rachelle Couch, # 17 Affidavit Trial Affidavit of Keri Hogan, # 18 Affidavit Trial Affidavit of Dr. Christopher Erath − (1 of 6), # 19 Affidavit Trial Affidavit of Dr. Christopher Erath − (2 of 6), # 20 Affidavit Trial Affidavit of Dr. Christopher Erath − (3 of 6), # 21 Affidavit Trial Affidavit of Dr. Christopher Erath − (4 of 6), # 22 Affidavit Trial Affidavit of Dr. Christopher Erath − (5 of 6), # 23 Affidavit Trial Affidavit of Dr. Christopher Erath − (6 of 6), # 24 Affidavit Trial Affidavit of Rachael Splaine Rollins, # 25 Affidavit Trial Affidavit of Larry Ellison, MAMLEO)(Reynolds, Alexandra) (Attachment 19 replaced on 2/12/2018) (Beatty, Barbara). (Attachment 9 replaced on 2/12/2018) (Beatty, Barbara). (Attachment 15 replaced on 2/22/2018) (Beatty, Barbara). (Entered: 02/05/2018)
345 Plaintiffs and Defendants Exhibit List of Exhibits to be Introduced Without Objection by All Plaintiffs.. (Reynolds, Alexandra) (Entered: 02/05/2018)
346 Exhibit List of Plaintiffs Marked Items to be Offered at Trial by All Plaintiffs.. (Reynolds, Alexandra) (Entered: 02/05/2018)
347 Defendants' Exhibit List With Plaintiffs' Objections by City of Boston, Boston Police Department, Edward Davis.. (Litsas, Helen) (Entered: 02/05/2018)
348 Defendants' Witness List by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/05/2018)
349 AFFIDAVIT of Ellen Coppola re 348 Witness List by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/05/2018)
350 AFFIDAVIT of John Dunlap re 348 Witness List by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/05/2018)
351 AFFIDAVIT of Paul Evans re 348 Witness List by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/05/2018)
352 AFFIDAVIT of Carl Selavka re 348 Witness List by City of Boston, Boston Police Department, Edward Davis. (Attachments: # 1 Exhibit A)(Litsas, Helen) (Entered: 02/05/2018)
353 AFFIDAVIT of Thomas Dowd re 348 Witness List by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/05/2018)
354 AFFIDAVIT of Robin Hunt re 348 Witness List by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/05/2018)
360 Letter from Alexandra Rueckle Reynolds of Wilmer Hale enclosing substitute courtesy copies of pretrial submissions filed on 2/5/2018. (Beatty, Barbara) (Entered: 02/08/2018)
361 MOTION in Limine To Exclude Plaintiffs' Expert Opinion Testimony Based On "Cultural Bias" by City of Boston, Boston Police Department.(Fitzpatrick, Thomas) (Entered: 02/09/2018)
362 MEMORANDUM in Support re 361 MOTION in Limine To Exclude Plaintiffs' Expert Opinion Testimony Based On "Cultural Bias" filed by City of Boston, Boston Police Department. (Attachments: # 1 Exhibit "Ethnic hair care products may increase

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02/14/2018 02/14/2018 02/14/2018 02/16/2018 02/20/2018 02/20/2018 02/23/2018
02/25/2018
02/26/2018 02/26/2018
02/26/2018 02/26/2018
02/28/2018

false positives in hair drug testing" by David. A. Kidwell, # 2 Exhibit Relevant excerpts of Joseph Michael Walsh, Ph. D. Deposition, # 3 Exhibit Relevant excerpts of David A. Kidwell, Ph. D. Deposition)(Fitzpatrick, Thomas) (Entered: 02/09/2018)
368 MOTION in Limine to Exclude Plaintiffs' Proffered Articles, Book Chapters, Reports, and Studies by City of Boston, Boston Police Department, Edward Davis.(Litsas, Helen) (Entered: 02/14/2018)
369 MEMORANDUM in Support re 368 MOTION in Limine to Exclude Plaintiffs' Proffered Articles, Book Chapters, Reports, and Studies filed by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/14/2018)
370 MOTION to Seal Document by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Wolkoff, Eric) (Entered: 02/14/2018)
371 Judge Douglas P. Woodlock: ORDER granting 370 Plaintiffs' Unopposed Motion for Leave to File Proposed Additional or Substitute Findings of Fact and Conclusions of Law and Certain Exhibits Under Seal. (Beatty, Barbara) (Entered: 02/16/2018)
372 TRIAL BRIEF MEMORANDUM by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 02/20/2018)
373 TRIAL BRIEF by All Plaintiffs. (Olshan, Jeffrey) (Entered: 02/20/2018)
377 Opposition re 361 MOTION in Limine To Exclude Plaintiffs' Expert Opinion Testimony Based On "Cultural Bias" filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Olshan, Jeffrey) (Entered: 02/23/2018)
378 Opposition re 368 MOTION in Limine to Exclude Plaintiffs' Proffered Articles, Book Chapters, Reports, and Studies filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Olshan, Jeffrey) (Entered: 02/25/2018)
379 NOTICE by City of Boston, Boston Police Department, Edward Davis of Intent to Cross Examine (Taub, Nicole) (Entered: 02/26/2018)
380 NOTICE by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington of Intent to Cross Examine (Reynolds, Alexandra) (Entered: 02/26/2018)
381 NOTICE of Appearance by Kevin S. Prussia on behalf of Ronnie Jones (Prussia, Kevin) (Entered: 02/26/2018)
382 Clerk's Notes for Final Pretrial Conference held before Judge Douglas P. Woodlock: Court discusses the submissions made by the parties regarding length of each witnesses' testimony during trial. Counsel to revise their estimates for each witnesses' testimony and state which day he or she will be testifying by 2:00 p.m. on 3/1/2018. Court DENIES the Motions in Limine 361 and 368 . Court reviews other pretrial matters with counsel. Trial to begin on 3/5/2018. (Court Reporter: Brenda Hancock at brhancock@msn.com.) (Beatty, Barbara) (Entered: 02/26/2018)
383 Transcript of Motion Hearing held on February 26, 2018, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com Redaction Request due 3/21/2018. Redacted Transcript Deadline set for 4/2/2018. Release of Transcript Restriction set for 5/29/2018. (Scalfani, Deborah) (Entered: 02/28/2018)

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02/28/2018
03/01/2018 03/05/2018
03/05/2018 03/05/2018 03/05/2018 03/05/2018 03/05/2018 03/05/2018 03/05/2018 03/05/2018 03/06/2018 03/06/2018 03/06/2018

384 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/28/2018)
385 JOINT STATEMENT of counsel Regarding Estimated Times For Trial Examinations. (Fitzpatrick, Thomas) (Entered: 03/01/2018)
388 NON JURY TRIAL DAY ONE: Plaintiffs offer Affidavit of J. Michael Walsh and accepted by the Court. Defendants file objections to the Affidavit of J. Michael Walsh, marked as exhibit 344−1−O and Court rules on the objections. Cross and re−direct examination of J. Michael Walsh. Affidavit of David A. Kidwell offered and accepted. Defendants objections to Affidavit of David A. Kidwell filed and marked as exhibit 344−9−O. Case proceeds with cross and re−direct examination of David A. Kidwell. Affidavit of Kerri Hogan offered and accepted. Defendants objections to Affidavit of Kerri Hogan filed and marked as exhibit 344−17−O. Court provides guidance on the objections raised. Case proceeds with cross, re−direct, and re−cross examination of Kerri Hogan. Affidavit of Christopher Erath. Defendants objections to Affidavit of Christopher Erath filed and marked as exhibit 344−18−O. Court provides guidance on the objections raised. Cross−examination of Christopher Erath begins.(Court Reporter: Brenda Hancock at brhancock@msn.com.) (Beatty, Barbara) (Entered: 03/06/2018)
389 Defendants' Objections to the Affidavit of J. Michael Walsh, marked as Bench trial Exhibit # 344−1−O. (Beatty, Barbara) (Entered: 03/06/2018)
390 Defendants' Objections to the Affidavit of David A. Kidwell, marked as Bench Trial Exhibit # 344−9−O.(Beatty, Barbara) (Entered: 03/06/2018)
391 Defendants' Objections to the Affidavit of Kerri Hogan, marked as Bench Trial Exhibit # 344−17−O. (Beatty, Barbara) (Entered: 03/06/2018)
392 Defendants' Objections to the Affidavit of Christopher Erath, marked as Bench Trial Exhibit # 344−18−O. (Beatty, Barbara) (Entered: 03/06/2018)
393 Defendants' Objections to the Affidavit of George C. Downing, marked as Bench Trial Exhibit # 344−14−O. (Beatty, Barbara) (Entered: 03/06/2018)
394 Defendants' Objections to the Affidavit of William E. Bridgeforth, Jr., marked as Bench Trial Exhibit # 344−15−O. (Beatty, Barbara) (Entered: 03/06/2018)
395 Defendants' Objections to the Affidavit of Rachelle Couch, marked as Bench Trial Exhibit # 344−16−O. (Beatty, Barbara) (Entered: 03/06/2018)
396 Defendants' Objections to the Affidavit of Rachael Splaine Rollins, marked as Bench Trial Exhibit # 344−24−O.(Beatty, Barbara) (Entered: 03/06/2018)
386 MOTION for Judgment on Partial Findings Pursuant to Fed. R. Civ. P. 52(c) by City of Boston, Boston Police Department.(Fitzpatrick, Thomas) (Entered: 03/06/2018)
387 MEMORANDUM in Support re 386 MOTION for Judgment on Partial Findings Pursuant to Fed. R. Civ. P. 52(c) filed by City of Boston, Boston Police Department. (Fitzpatrick, Thomas) (Entered: 03/06/2018)
398 NON JURY TRIAL DAY TWO: Court addresses objections to remaining Affidavits submitted (Couch, Downing, Bridgeforth, Rollins, Cairns, Dunlap, Evans). Continued testimony of Christopher Erath on cross, re−direct and re−cross. Affidavits of George Downing, William Bridgeforth, Rachelle Couch, Larry Ellison and Rachael Splaine−Rollins offered by plaintiffs and accepted by the Court. Plaintiffs rest. Defendants file 52(c) Motion and the Court defers on ruling. (Motion to be filed in CM/ECF). Defendants offer the Affidavit of Leo Kadehjian and accepted by the Court without any objections. Cross and re−direct examination of Leo Kadehjian. Affidavit of Robin Hunt offered and accepted without any objections. Cross and re−direct examination of Robin Hunt. Affidavit of Carl Selavka offered and accepted without any objections. Cross examination of Carl Selavka.(Court Reporter: Brenda Hancock at brhancock@msn.com.) (Beatty, Barbara) (Entered: 03/06/2018)

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03/07/2018
03/12/2018 03/13/2018 03/13/2018 03/13/2018 03/15/2018 03/15/2018 03/15/2018
03/19/2018 03/19/2018

399 NON JURY TRIAL DAY THREE: Continued cross and re−direct examination of Carl Selavka. Affidavit of Thomas Cairns offered and accepted. Cross, re−direct, re−cross and re−redirect examination of Thomas Cairns. Affidavit of Thomas Dowd offered and accepted. Cross, re−direct and re−cross examination of Thomas Dowd. Affidavits of Ellen Coppola and John Dunlap offered without objection. Trial continued until 3/13/2018 at 9:00 a.m. Parties to address the issue of the exhibits being offered in evidence.(Court Reporter: Brenda Hancock at brhancock@msn.com.) (Beatty, Barbara) (Entered: 03/07/2018)
400 NOTICE RESCHEDULING DAY FOUR OF BENCH TRIAL: Continuation of Bench Trial is rescheduled until 3/15/2018 at 9:00 a.m. in Courtroom 1 before Judge Douglas P. Woodlock. (Beatty, Barbara) (Entered: 03/12/2018)
401 Transcript of Day One of Bench Trial held on March 5, 2018, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Cheryl Dahlstrom, Joan Daly and Brenda Hancock at brhancock@msn.com Redaction Request due 4/3/2018. Redacted Transcript Deadline set for 4/13/2018. Release of Transcript Restriction set for 6/11/2018. (Scalfani, Deborah) (Entered: 03/13/2018)
402 Transcript of Day Two of Bench Trial held on March 6, 2018, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Cheryl Dahlstrom and Brenda Hancock at brhancock@msn.com Redaction Request due 4/3/2018. Redacted Transcript Deadline set for 4/13/2018. Release of Transcript Restriction set for 6/11/2018. (Scalfani, Deborah) (Entered: 03/13/2018)
403 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/13/2018)
404 MOTION for Judgment on Partial Findings Renewed, Pursuant to Fed. R. Civ. P. 52(c) by City of Boston, Boston Police Department.(Fitzpatrick, Thomas) (Main Document 404 replaced on 3/15/2018) (Gioia, AnaMaria). (Entered: 03/15/2018)
405 MEMORANDUM in Support re 404 MOTION for Judgment on Partial Findings Renewed, Pursuant to Fed. R. Civ. P. 52(c) filed by City of Boston, Boston Police Department. (Fitzpatrick, Thomas) (Entered: 03/15/2018)
406 NON JURY TRIAL DAY FOUR: Defendants raise objections to exhibits being offered during testimony of Paul Evans. Defendants offer the Affidavit of Paul Evans and Court accepts. Cross and re−direct examination of Paul Evans. Defendant rests and renews Motion for Judgment pursuant to 52c. Parties to file a final designation of agreed upon trial exhibits, as well as, clarifying any remaining disputes in need of resolution regarding contested exhibits, no later than 3/29/2018. Final argument to be scheduled. (Court Reporter: Brenda Hancock at brhancock@msn.com.) (Beatty, Barbara) (Entered: 03/15/2018)
407 Transcript of Day Three of Bench Trial held on March 7, 2018, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Cheryl Dahlstrom and Brenda Hancock at cheryldahlstrom@comcast.net Redaction Request due 4/9/2018. Redacted Transcript Deadline set for 4/19/2018. Release of Transcript Restriction set for 6/18/2018. (Scalfani, Deborah) Modified on 3/19/2018 (Scalfani, Deborah). (Entered: 03/19/2018)
408 Transcript of Day Four of Bench Trial held on March 15, 2018, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com. Redaction Request due 4/9/2018. Redacted Transcript Deadline set for 4/19/2018. Release of Transcript Restriction set for 6/18/2018. (Scalfani, Deborah) Modified on 3/19/2018 (Scalfani, Deborah). (Entered: 03/19/2018)

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03/19/2018 03/19/2018 03/20/2018 03/23/2018 03/29/2018 03/29/2018 04/10/2018 04/23/2018 04/25/2018 05/21/2018 05/22/2018 05/23/2018
05/24/2018

409 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/19/2018)
410 MOTION for Extension of Time TO OPPOSE DEFENDANTS MOTION, PURSUANT TO FED. R. CIV. P. 52(C), FOR ENTRY OF JUDGMENT by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Wolkoff, Eric) (Entered: 03/19/2018)
411 Judge Douglas P. Woodlock: ORDER granting 410 Plaintiffs' Unopposed Motion for Extension of Time to Oppose Defendants' Motion Pursuant to Fed.R.Civ.P 52(c) For Entry of Judgment until 3/23/2018. (Beatty, Barbara) (Entered: 03/20/2018)
412 Opposition re 386 MOTION for Judgment on Partial Findings Pursuant to Fed. R. Civ. P. 52(c) filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Reynolds, Alexandra) (Entered: 03/23/2018)
413 Joint Exhibit List Of Marked Items To Be Offered Into Evidence by All Plaintiffs.. (Reynolds, Alexandra) (Entered: 03/29/2018)
414 Opposition re 404 MOTION for Judgment on Partial Findings Renewed, Pursuant to Fed. R. Civ. P. 52(c) filed by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Reynolds, Alexandra) (Entered: 03/29/2018)
415 NOTICE OF CLOSING ARGUMENTS/DAY 5 BENCH TRIAL: Final day of Bench Trial with closing arguments is scheduled for 5/9/2018 at 2:30 p.m. in Courtroom 1 before Judge Douglas P. Woodlock. (Beatty, Barbara) (Entered: 04/10/2018)
416 MOTION to Continue Closing Arguments to May 31, June 6, or June 7 by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Pirozzolo, Lisa) (Entered: 04/23/2018)
417 Judge Douglas P. Woodlock: ORDER granting 416 Plaintiffs' Unopposed Motion for Continuance. Closing Arguments/Day 5 of Bench Trial is RESCHEDULED until 5/31/2018 at 9:30 a.m. in Courtroom 1 before Judge Douglas P. Woodlock. (Beatty, Barbara) (Entered: 04/25/2018)
418 Judge Douglas P. Woodlock: PROCEDURAL ORDER − In preparation for closing arguments on May 31st, Counsel shall file their respective final findings of fact and conclusions of law, with the appropriate citations to the evidence, no later than 12:00 noon on Friday, May 25, 2018.(Beatty, Barbara) (Entered: 05/21/2018)
419 First MOTION to Continue (1) deadline for filing final findings of fact and conclusions of law; (2) closing arguments to (1) June 8; (2) June 13, 14 or June 15 Unopposed by City of Boston, Boston Police Department.(Fitzpatrick, Thomas) (Entered: 05/22/2018)
420 Judge Douglas P. Woodlock: ORDER granting in part and denying in part 419 Defendants' First Unopposed Motion for Continuance. The final findings of fact and conclusions of law shall be filed no later than 5:00 p.m. on Friday June 8, 2018 and the closing argument is RESCHEDULED until Friday, June 22, 2018 at 9:30 a.m. in Courtroom 1 before Judge Douglas P. Woodlock. (Beatty, Barbara) (Entered: 05/23/2018)
421 Assented to MOTION for Leave to File Certain Exhibits Under Seal by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Olshan, Jeffrey) (Entered: 05/24/2018)

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06/04/2018
06/05/2018 06/05/2018 06/08/2018 06/08/2018 06/08/2018 06/08/2018 06/21/2018 06/22/2018
06/26/2018 06/29/2018 07/11/2018
07/11/2018
07/13/2018 07/13/2018 07/13/2018

422 Joint MOTION for Leave to File Final Proposed Findings of Fact and Conclusions of Law by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Olshan, Jeffrey) (Entered: 06/04/2018)
423 Judge Douglas P. Woodlock: ORDER granting 422 Joint Motion for Leave to File Final Proposed Findings of Fact and Conclusions of Law Under Seal. (Beatty, Barbara) (Entered: 06/05/2018)
424 Judge Douglas P. Woodlock: ORDER granting 421 Plaintiffs' Assented to Motion for Leave to File Certain Exhibits Under Seal. (Beatty, Barbara) (Entered: 06/05/2018)
425 Final Proposed Findings of Fact by City of Boston, Boston Police Department. (Fitzpatrick, Thomas) (Entered: 06/08/2018)
426 Supplemental Proposed Findings of Fact by City of Boston, Boston Police Department. (Fitzpatrick, Thomas) (Entered: 06/08/2018)
427 Final Proposed Findings of Fact by All Plaintiffs. (Reynolds, Alexandra) (Entered: 06/08/2018)
428 Supplemental Proposed Findings of Fact by All Plaintiffs. (Reynolds, Alexandra) (Entered: 06/08/2018)
432 NOTICE OF RESCHEDULING TIME FOR CLOSING ARGUMENTS/DAY 5 BENCH TRIAL: Bench Trial RESCHEDULED (as to time only) until 1:00 p.m. on 6/22/2018 in Courtroom 1 before Judge Douglas P. Woodlock. (Beatty, Barbara) (Entered: 06/21/2018)
433 NON JURY TRIAL DAY FIVE: Closing arguments held before Judge Douglas P. Woodlock. Closing arguments will continue on 8/28/2018 at 1:00 p.m. with respect to potential for remedy if liability is found. Additional submissions must be submitted by July 13, 2018, regarding the impact of the mandate rule, identification of record evidence regarding false positives in hair testing, and the need for specificity regarding proffer of alternative testing protocol. (Court Reporter: Brenda Hancock at brhancock@msn.com.) (Beatty, Barbara) (Entered: 06/25/2018)
434 MOTION to Withdraw as Attorney by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Macris, Aaron) (Entered: 06/26/2018)
435 Judge Douglas P. Woodlock: ORDER granting 434 Motion to Withdraw as Counsel. Attorney Aaron Macris terminated. (Beatty, Barbara) (Entered: 06/29/2018)
436 Transcript of Day Five of Bench Trial held on June 22, 2018, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com Redaction Request due 8/1/2018. Redacted Transcript Deadline set for 8/13/2018. Release of Transcript Restriction set for 10/9/2018. (Scalfani, Deborah) (Entered: 07/11/2018)
437 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/11/2018)
438 TRIAL BRIEF /Bench Memorandum Pursuant to Court's Order of June 25, 2018 by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 07/13/2018)
439 TRIAL BRIEF POST−TRIAL BRIEFING ON REMEDIES by All Plaintiffs. (Jaikumar, Arjun) (Entered: 07/13/2018)
440 TRIAL BRIEF POST−TRIAL SUPPLEMENTAL BRIEFING by All Plaintiffs. (Jaikumar, Arjun) (Main Document 440 replaced on 7/19/2018) (Beatty, Barbara). (Entered: 07/13/2018)

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07/27/2018 08/16/2018 08/27/2018
08/28/2018 08/28/2018
08/28/2018 08/28/2018
08/28/2018 09/07/2018
09/07/2018 09/21/2018 09/25/2018

441 TRIAL BRIEF /DEFENDANTS' BENCH MEMORANDUM REGARDING PLAINTIFFS' REQUEST FOR REMEDIES by City of Boston, Boston Police Department, Edward Davis. (Litsas, Helen) (Entered: 07/27/2018)
442 Defendants' Bench Memorandum In Response by City of Boston, Boston Police Department to 440 Trial Brief Contention That The Evidence Established That The Hair Test "Can Generate False Positives For Some Black Individuals". (Fitzpatrick, Thomas) (Entered: 08/16/2018)
443 MOTION for Leave to File Supplemental Brief Regarding Remedies by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit A (Plaintiffs' Supplemental Brief Regarding Remedies))(Jaikumar, Arjun) (Entered: 08/27/2018)
444 NOTICE OF RESCHEDULING TIME OF HEARING: Conclusion of Bench Trial is RESCHEDULED until 2:30 p.m. on 8/28/2018 in Courtroom 1 before Judge Douglas P. Woodlock. (Beatty, Barbara) (Entered: 08/28/2018)
445 Judge Douglas P. Woodlock: ORDER granting 443 Plaintiffs' Unopposed Motion for Leave to File Supplemental Brief Regarding Remedies; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Beatty, Barbara) (Entered: 08/28/2018)
446 TRIAL BRIEF Regarding Remedies by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Jaikumar, Arjun) (Entered: 08/28/2018)
447 NON JURY TRIAL DAY SIX: Closing arguments continued. Counsel to exchange lists of exhibits marked for identification by September 7 and exchange objections by September 14th. No later than September 21st, the parties shall file their final submission with the Court regarding any remaining marked items, objections, and responses to objections. Case submitted to the Court. (Court Reporter: Brenda Hancock at brhancock@msn.com.)(Attorneys present: Pirozzolo, Wolkoff, Reynolds, Sellstrom, Litsas, Fitzpatrick) (Beatty, Barbara) Modified after consulting with counsel on 9/4/2018 (Beatty, Barbara). (Entered: 08/29/2018)
448 Final Exhibit and Witness List. (Beatty, Barbara) (Entered: 08/29/2018)
449 Transcript of Day Six of Bench Trial held on August 28, 2018, before Judge Douglas P. Woodlock. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Brenda Hancock at brhancock@msn.com Redaction Request due 9/28/2018. Redacted Transcript Deadline set for 10/9/2018. Release of Transcript Restriction set for 12/6/2018. (Scalfani, Deborah) (Entered: 09/07/2018)
450 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 09/07/2018)
451 Joint Submission of Exhibit List of Marked Items Offered Into Evidence with Objections and Responses by All Plaintiffs.. (Attachments: # 1 Exhibit A − Marked Items Offered Into Evidence with Objections and Responses)(Olshan, Jeffrey) (Entered: 09/21/2018)
452 MOTION for Leave to File Supplemental Brief Regarding Rehabilitation by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit A− Proposed Supplemental Brief)(Reynolds, Alexandra) (Entered: 09/25/2018)

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04/08/2019
10/11/2019 10/15/2019 11/06/2019

453 Request for Judicial Notice by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit A − COB Answer to First Amended Complaint and Counterclaim, # 2 Exhibit B − Psychemedics Corporation First Amended Complaint)(Jaikumar, Arjun). (Entered: 04/08/2019)
454 MOTION to Withdraw as Attorney by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington.(Reynolds, Alexandra) (Entered: 10/11/2019)
455 Judge Douglas P. Woodlock: ORDER granting 454 Motion to Withdraw as Counsel for Plaintiffs. Attorney Alexandra Rueckle Reynolds terminated. (Beatty, Barbara) (Entered: 10/15/2019)
456 Request for Judicial Notice of Decision issued by the Supreme Judicial Court of Massachusetts, by Richard Beckers, William E. Bridgeforth, Clararise Bristow, Rachelle Couch, George C. Downing, Jr, Shawn N. Harris, Keri Hogan, Ronnie Jones, Massachusetts Association of Minority Law Enforcement Officers, Eugene Wade, Walter R. Washington. (Attachments: # 1 Exhibit A − Decision)(Pirozzolo, Lisa) (Entered: 11/06/2019)