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ERIN McCLEOD and KEVIN ROBINSON, Plaintiffs
vs.
CITY OF DETROIT, et al Defendants.
 
Case:
Civil No. 83-CV-2163-DT
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
 
Date:
August 21, 1985, Decided
 
Court:
COHN
 
Author:
The Hon. Justice Avern Cohn
 

I.

A.

This case involves a challenge to the City of Detroit's use of particular drug screening tests for the presence of marihuana in the blood and the rejection of plaintiffs as candidates for fire fighting positions in 1982 on the basis of positive test results. On May 21 1985 a partial judgment was entered in favor of defendants on a jury verdict dismissing plaintiffs' 42 U.S.C. SEC. 1983 claims against the City of Detroit and James Duncan (Duncan) Senior Examining Physician in the Medical Division of the Detroit Fire Department. Earlier Melvin Jefferson Detroit Fire Commissioner was dismissed as a defendant. On July 1 1985 plaintiffs' motion for a new trial was denied for reasons stated on the record on June 17 1985. Now before me for decision are plaintiffs' claims under the Rehabilitation Act of 1973 (the Act) *fn1 29 U.S.C. SEC. 701 et seq. and the Charter of the City of Detroit (the Charter).

B.

As part of the examination process for the position of firefighter the City of Detroit requires applicants to submit to drug screening tests for the presence of marihuana. Each plaintiff tested positive on two different tests each of which tests was administered a week apart. As a consequence of the positive test results plaintiffs were rejected. Plaintiffs say that under the Act they are considered handicapped and have been discriminated against as a consequence of their handicap. Plaintiffs also say that the Charter requires that employment be based on merit and because the tests utilized have no scientific validity denial of employment based on the positive test results was arbitrary and capricious.

The City of Detroit says that plaintiffs are not handicapped individuals as defined by the Act and that there is a rational relationship between testing positive for the presence of marihuana as did plaintiffs and disqualification for the job of firefighter.

C.

For the reasons that follow which constitute the findings of fact and conclusions of law required by Fed. R. Civ. P. 52(a) I find that the City's position is correct and therefore plaintiffs' claims will be dismissed.

II.

A.

At trial plaintiffs' case was put through plaintiffs' cross-examination of Duncan and the testimony of Thomas Regent and Arthur McVey expert toxicologists as well as a number of exhibits. Plaintiffs established that they were fully qualified for the firefighter position except for the positive test results. Their proof established that the City began drug screening tests generally in 1973 and in 1981 included a test for the presence of marihuana when Sylva Corporation (Sylva) began marketing the EMIT (Enzyme Multiple Immunoassay Technique) test for the presence of marihuana. When the use of this test was challenged as unreliable because of the possibility of false positives the City directed the laboratory administering the tests to confirm a positive test result by the EMIT method with an RIA (Radio Immunoassay) test as recommended by Sylva. According to the plaintiffs' experts' testimony each of these tests has too high a probability of false positives and therefore the only reliable confirmatory test is a GC-MS (gas chromatography - mass spectrometry) test. The experts opined that the positive test results of plaintiffs demonstrated at most the presumptive use of marihuana and that a decision to reject them for employment as firefighters on the basis that they were marihuana users was inappropriate. Important to plaintiffs' roofs at trial was a study (Px21) describing the problems of detecting marihuana use and the limitations of each of the tests i.e. EMIT RIA and GC/MS. While the study tended to support the experts' opinion on the lack of reliability in the EMIT/RIA combination it stated that the cost of the EMIT/RIA combination was less than $5.00 while the cost of a GC/MS test was $50 - $100.

B.

The City's proofs were put through the testimony of staff members of its Personnel Department Frank S. Smith and Arnold Bauer; the Chief of Fire Operations Walter Chapman; and Robert DePont former Director of the National Institute for Drug Abuse currently in private practice as a treating physician for drug abusers and a consultant on problems of drug abuse and treatment. Plaintiffs' proofs established that within minutes of ingestion marihuana can cause physical reactions such as short-term memory loss problems with coordination and thinking and diminishment of the ability to take risks. This evidence proved that the use of marihuana by a firefighter constituted a direct threat to the property and safety of the community.

The Personnel Department witnesses expressed the opinion which I find credible that positive test results demonstrated that plaintiffs after being expressly warned against use of marihuana did use it and were thus users of an illegal substance *fn2 conduct incompatible with public employment.

As to the appropriateness of the use of the EMIT/RIA combination for the presence of marihuana and hence proof of the fact that plaintiffs were marihuana users the City's proofs established the relatively modest cost of this form of testing the general reliability of these tests as opined by Dr. DuPont the acceptance of the EMIT test as a useful drug screen and the express recommendation of Sylva that the RIA test be used to confirm a positive test result by the EMIT method.

The City acknowledged as explained by Sylva in its instruction booklet (Px24) that the usefulness of the tests was limited to indicating the recent use of marihuana and not as a measure of the level of use or the effect of use on the person tested. *fn3

III.

Plaintiffs' case under the Act fails because they are not handicapped as defined in the Act and even if they are defined as handicapped under the Act the City legitimately disqualified them from the job of firefighter.

A.

To make out a claim of discrimination because of a physical handicap plaintiffs have to satisfy the threshold requirement of being a handicapped individual.

29 U.S.C. SEC. 794 provides that:

No otherwise qualified handicapped individual in the United States as defined in section 706(7) of this title shall solely by reason of his handicap be excluded from the participation in be denied the benefits of; or be subject to discrimination under any program or activity receiving Federal financial assistance . . . . [Emphasis added.] *fn4

A handicapped individual is defined under 29 U.S.C. SEC. 706 as:

any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities (ii) has a record of such impairment or (iii) is regarded as having any impairment.

The Act also affords a cause of action not only to a person excluded because he or she is actually handicapped 29 U.S.C. SEC. 794 but also to those excluded from participation in a federally funded program because they have been incorrectly classified and treated as being handicapped when in fact they are not. Carter v. Orleans Parish Public Schools 725 F.2d 261 (5th Cir. 1984).

Importantly therefore plaintiffs must establish an impairment that substantially limits one or more of their major life activities. "Major life activities" are defined in the regulations as such actions as caring for one's self performing manual tasks walking seeing hearing speaking breathing learning and working. 29 C.F.R. SEC. 1613.702(c).

B.

Jasany v. United States Postal Service 755 F.2d 1244 (6th Cir. 1985) involved a postal worker with a mild case of strabismus i.e. crossed eyes. The affliction did not have any effect on any of plaintiff's activities including his work history apart from the operation of a mail sorting machine at his post office job. The district court found that work on the sorting machine qualified as a major life activity and that plaintiff was handicapped within the meaning of Sec. 706. Court of Appeals reversed the district court decision holding that an impairment that affects only a narrow range of jobs can be regarded either as or as not reaching a major life activity or as or as not substantially limiting that the burden is on the plaintiff to establish the existence of an impairment that substantially limits a major life activity as an element of a prima facie case and that plaintiff had failed to do so.

In E.E. Black Ltd. v. Marshall 497 F. Supp. 1088 (D.C. 1980) Court had under consideration the definition of a handicapped individual under Sec. 706 and held that an impairment that interfered with an individual's ability to do a particular job but did not significantly decrease the ability to obtain satisfactory employment otherwise was not substantially limiting within the meaning of the Act.

Here the question is whether the plaintiffs suffer from an impairment that significantly altered a major life activity. Even if the use of marihuana qualifies as an impairment there was no evidence at trial that being a firefighter was a major life activity. "One particular job for one particular employer cannot be a major life activity." Salt Lake City Corp. v. Confer 674 P.2d 632 636 (Utah 1983).

C.

Assuming that drug use is a handicap and that plaintiffs are drug users the Act excludes them from its benefits. 29 U.S.C. SEC. 706 reads:

For purposes of sections 793 and 794 of this title as such sections relate to employment such term (handicapped individuals) does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment by reason of such current alcohol or drug abuse would constitute a direct threat to property or the safety of others. [Emphasis added.]

Plaintiffs' contention that because the City takes the position that their memory coordination and risk-taking ability are impaired it also must view them as handicapped even though its view of these qualities is erroneous confuses the distinction between a handicap and a job qualification.

Certainly the Act makes clear that "no otherwise qualified individual is to be denied employment based on his or her handicap " 29 U.S.C. SEC. 794. And certainly Congress intended to include an individual with a history of drug abuse as "handicapped " 28 C.F.R. SEC. 540; Davis v. Bucher 451 F. Supp. 791 (E.D. Pa. 1978). This circumstance obtains however only where the drug addiction substantially affects the addict's ability to perform a major life activity id. and here plaintiffs failed to show that their ability to perform a major life activity had been impaired.

If plaintiffs had established the existence of an impairment that substantially limited a major life activity the burden would have shifted to the City to demonstrate that the challenged criteria were job related and required by job necessity. Prewitt v. United States Postal Service 662 F.2d 292 (5th Cir. 1981). Assuming that plaintiffs established they were handicapped they were not "qualified handicapped" i.e. those "who with or without reasonable accommodations can perform essential functions of the position in question." 29 C.F.R. SEC. 1613.702(f); Jasany supra 755 F.2d at 1250. As already described use of marihuana can adversely affect a firefighter's ability to do his or her job. The challenged criteria were therefore job related and required by business necessity Prewitt id. because they implicated the possibility of endangering the property and safety of others. The plaintiffs therefore had no coverage under 29 U.S.C. SEC. 706(7)(B).

IV.

Plaintiffs' claim under the Charter is strictly one of state law and under United Mine Workers v. Gibbs 383 U.S. 715 (1966) might better have been dismissed. Since the claim was not dismissed however judicial economy suggests that it be dealt with now.

A.

The Charter Chapter 5 SEC. 6-501 reads:

The purpose of this chapter is to establish a system of personnel administration that meets the needs of the people of Detroit assures that employment and promotion in Detroit government are on the basis of merit . . . and provides methods of redress when these provisions are violated. *fn5

Whether persons in plaintiffs' position i.e. job applicants have a cause of action for an alleged violation of this provision is not clearly established in the law. The City's citation to Graves v. Wayne County 577 F. Supp. 1008 (E.D. Mich. 1984) as authority for the proposition that plaintiffs have no cause of action is mystifying; the case says nothing on the question. The cases cited by plaintiffs Gantz v. City of Detroit 392 Mich. 348 (1974); Satterley v. City of Flint 373 Mich. 102 (1964); Brady v. City of Detroit 353 Mich. 243 (1958); and Detroit Firefighters Association v. City of Detroit 127 Mich. App. 673 (1983) each involved a plaintiff already in the employ of the City claiming job benefits based on particular Charter provisions. Notwithstanding the lack of authority I will assume that an unsuccessful job applicant has a cause of action for wrongful denial of employment because of the use of an arbitrary and capricious standard. *fn6 In other words for purposes of this case I accept the proposition that if the standard applied to deny plaintiffs employment with the City was not job related as unsuccessful applicants they may sue for damages for denial of the job of firefighter.

B.

To find that the standard used by the City to deny employment to plaintiffs was not job related I would have to find that plaintiffs proved that the use of marihuana was job disqualifying and that the use of the EMIT/RIA combination was arbitrary and capricious. As already described I am satisfied it was reasonable for the City to disqualify a marihuana user from being considered for the position of firefighter; but plaintiffs certainly did not prove that use of marihuana has no rational relationship to the job of firefighter. Likewise I am also satisfied that use of the EMIT/RIA combination given its relative cost and relative reliability was a reasonable method of testing for the use of marihuana and an appropriate method of screening candidates for the job of firefighter. Certainly plaintiffs did not prove that the test methods used by the City were arbitrary and capricious. *fn7

V.

The claims under the Act and the Charter are DISMISSED. An appropriate judgment will be entered by the Clerk.

 
Notes:

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