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View Case Details
 
The Shield Club, et al., Plaintiffs
vs.
City of Cleveland, et al., Defendants
 
Case:
Nos. C72-1088, C77-346
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION
 
Date:
July 15, 1986, Filed
 
Court:
William K. Thomas, United States District Senior Judge.
 
Author:
The Hon. Justice Thomas
 

MEMORANDUM AND ORDER

Forty-three cadets in the 95th Police Academy class were required to submit urine specimens on October 21, 1985. SmithKline Bio-Science Laboratories, Inc. performed EMIT (Enzyme Multiplied Immunoassay Technique) assays on the urine specimens. The assays produced positive results for the presence of marijuana or other controlled substances for 10 out of 20 minorities, and for 3 out of 23 non-minorities. These results were confirmed by an alternate testing method known as radioimmunoassay (RIA) performed on the same specimens. Twelve of the 13 cadets who had tested positive submitted second urine specimens on October 22, 1985 for gas chromatography/mass spectrometry analysis (GC/MS), which also confirmed the original results. n1

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n1 One cadet resigned without submitting a second urine sample.

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I.

A.

Thereafter, a hearing was held on January 24, 1986 pursuant to this court's guidelines of January 21. Plaintiffs Shield Club, et al. requested, pursuant to paragraph 7 of the amended consent decree of December 21, 1984, discovery of data relating to the urine testing on October 21, 1985 of the 43 police patrol cadets. Defendant city and intervenor FOP moved for protective orders against plaintiffs' notice depositions and other discovery requests. In its guidelines, the court ruled that the Shield Club could not engage in unrestricted discovery under the Federal Rules of Civil Procedure in enforcing its rights under paragraph 7. However, the court permitted the plaintiffs to ask leave for discovery relating to employment of urine testing of police patrol cadets on or about October 21, 1985, because on the record presented there is a sufficient likelihood that urine testing of police patrol cadets to ascertain any use of controlled drug substances or illegal chemical substances is a "post-examination screening procedure[]" within the meaning of paragraph 2(b) of the amended consent decree.

At the January 24 hearing the court directed the city, over its objection, to produce identified laboratory testing materials ("the objective documents") relating to the testing of urine samples of the cadets. These records were produced at the hearings of February 7 and 25 and were inspected by the court and counsel for the plaintiffs. At the close of the February 7 hearing counsel for the plaintiffs stated "we would like to have a toxicologist look at the records under the court's supervision so they can discuss them with us." Counsel for the city opposed this request:

We believe that a showing should be made that the field of toxicology has any bearing on the issue of discrimination on this case before we get to that.

Thereupon, the court formulated this threshold issue:

We will ask you to make a request for a toxicologist to serve several purposes. You can list them all, and we'll have to decide that threshold question, if it makes any difference whatever [the toxicologist] might tell you about these records as it bears on this question of discrimination. And then, if indeed I find that it might, then I will grant your request [to let the toxicologist look at the SmithKline records]. n2

Simply, the threshold issue may be paraphrased as follows:

Can a toxicologist's examination and report on the urine testing data collected by the city possibly "bear[] on [the] question of discrimination"?

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n2 In evolving the threshold issue, the court earlier ruled that "once those records [Lt. Groudle and Smith-Kline] are in, plaintiff may make a formal request for the [use] of a toxicologist or for any other relief that I believe is proper and appropriate and submit a supporting brief and let the city respond to it."

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B.

On March 18, 1986 plaintiffs filed their "Brief Re: Drug Testing." They contend that the urine test, administered to police patrol cadets on October 21, 1985, "adversely affected the minority police patrol cadets." Plaintiffs note that "the city retained ninety-one percent of the non-minority cadets, but only forty-four percent of the minority cadets after the test." In addition to developing their adverse impact argument and other arguments, plaintiffs advance an argument supported by the attached affidavit of a toxicologist, Dr. James Woodford, and other affidavits and exhibits.

In his ten-page affidavit, Dr. Woodford presents what may be called a melanin theory to show that the assays performed on the urine specimens of the minority cadets could be racially biased. As his first hypothesis he states:

There can be racial bias in the EMIT, RIA and GC/MS marijuana screening tests for the following reasons: melanin, the bodily substance responsible for skin tone, occurs in urine as conjugated fragments which closely resemble urinary cannabinoid fragments in terms of physical size, positioning of atoms and bond lengths such that these screening tests may misidentify the melanin fragments as cannabinoids. Some melanin fragments have chemical dimensions and atoms in the right places to fit into the EMIT and RIA antibody slots. Some melanin fragments have the same mass to charge ratio which the GC/MS test can mistake for cannabinoids. GC/MS is tuned to look for cannabinoid fragments. This spectral region has been identified as containing large amounts of melanin derivatives.

The melanin theory underlying plaintiffs' claim was not disclosed to the court and opposing counsel until plaintiffs' filing of March 18, 1986. The city, thereafter, chose to respond with a Motion "Re Further Proceedings in Connection With Plaintiffs' Allegations as to Drug Testing" (hereafter, Motion Re Further Proceedings). The defendant city urges:

The brief filed by plaintiffs fails to indicate the nature of the relief they seek. Since the minority patrol officer trainees who voluntarily resigned their positions in the aftermath of the testing were replaced by additional minority trainees in the current academy class, it is apparent that no retrospective relief would in any event be appropriate. Moreover, since the city has followed the practice, pursuant to the court's orders of October 29, 1981 and February 24, 1986, of replacing with other minority persons all minority persons who for any reason fail to complete Academy training and become sworn in as police officers, it has yet to be shown why the class represented by plaintiffs has any justifiable interest in resolving the issue plaintiffs have raised.

In the guidelines for the January 24 hearing the court declared:

3(c). Under the amended consent decree, the court is not concerned with the impact of any urine testing of particular minority policy patrol cadets for drug or chemical substances, but rather with the city's obligation to comply with requirements of paragraph 4 of the amended consent decree [the hiring preference provision], particularly the introductory language of subsection (a) of paragraph 4.

This court's order of February 24, 1986, applying the order of October 29, 1981 to the amended consent decree, is consistent with this third factor which the court said would "collectively be considered" in "judging whether utilization of the post-examination procedure of urine testing is a non-discriminatory or discriminatory selection criterion." Hence, at the outset of this memorandum and order, the court concludes and determines that it will not consider in this proceeding any relief that would retrospectively affect or modify the terminations n3 of the ten minority cadets of the 95th academy class who resigned on October 23, 1985. n4

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n3 As one cadet stated in an affidavit, "Sgt. James told us that it would be better to sign the letter of resignation because if we took the termination, it would be for drug abuse, and that would make it difficult to get a job."

n4 The court expressly rejects plaintiffs' suggestion in their reply brief that "if minority cadets lost their jobs as a result of a violation of the Amended Consent Decree, [the court's] relief could include, on a class basis, reinstatement, back pay and appropriate retroactive benefits."

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However, the court overrules the defendant city's objection that the plaintiffs lack standing to press their motion for further discovery. Plaintiffs have standing, under paragraph 7 of the amended consent decree and the concomitant court-imposed procedures, to request discovery from the city if they can support a class-based claim that the city's urine testing discriminates against minority cadets as a class.

Furthermore, it is concluded that the court may treat plaintiffs' motion and affidavit of Dr. Woodford as a class-based request for prospective modification of the present mode of drug testing. This treatment is warranted, since any ultimate finding by the court that there is a scientifically acceptable basis for the melanin theory might well require the court to order the city to modify its use of EMIT, RIA, and GC/MS assays in conducting drug testing. Anticipating that the court may "deal with the issue for prospective purposes (i.e. future drug screening procedures as to police officer applicants and trainees)," the city moves the plaintiffs to disclose to the Court and to the City all the empirical bases upon which their claimed expert premises the racial bias theory set forth in his Affidavit and his proposal as to the proper means by which drug screening may be conducted that would eliminate the "racial bias" claimed to inhere in the types of testing used in October, 1985.

The various briefs and motions, n5 the affidavits, and the attached exhibits make up the record upon which the court considers the formulated threshold issue and any derivative issues raised by the parties.

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n5 Intervenors FOP and CCPA each filed a brief "Re: Drug testing" after the city filed its "Motion Re Further Proceedings." Thereafter, the plaintiffs filed a reply brief re: drug testing. The city then filed a reply brief in response to plaintiffs' brief re: drug testing and in support of its motion. The city later filed two "supplements" to its reply brief. Thus, the court has been well briefed.

The city did not obtain leave to file its reply brief, see Local Civil Rule 3.02, and the city did not obtain leave to file its supplemental briefs or the letters or copies of letters it has filed with the court. However, the court has found each of the pleadings and attachments helpful and retroactively grants leave to the city.

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II.

Plaintiffs concede that "the City is probably warranted in denying final appointment to any police patrol cadet who is a user of a controlled drug substance or other illegal chemical substance." They contend, however, that because urine testing is a "post-examination screening procedure" that "may have been racially biased" and that "adversely affected" the minority police cadets, the discovery they seek "bears on th[e] question of discrimination." Plaintiffs further maintain that paragraph 2 of the amended consent decree n6 makes the EEOC Uniform Guidelines on Employee Section Procedures applicable to urine testing.

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n6 2. The defendants shall utilize only such selection criteria for the hiring of police patrol officers as are non-discriminatory and demonstrably job related in a manner guided by the EEOC Uniform Guidelines on Employee Selection Procedures. The selection criteria referred to herein include, but are not limited to, the following:

a) entrance examinations; and b) post-examination screening procedures. The previously approved screening procedures (Court order dated April 22, 1976) may continue to be employed, except insofar as they may conflict with the other provisions of this order.

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Intervenors FOP and CPPA both challenge the plaintiffs' conclusion that urine testing is a "post-examination screening procedure" and thus a "selection criterion" under paragraph 2 and under the EEOC guidelines. The CPPA argues that the urine testing here, designed to detect voluntary use of illegal drugs, is better characterized as part of a "disciplinary proceeding than [as] a hiring selection criterion." The FOP adds that "the Guidelines clearly do not apply to scientific tests where results are measured by purely objective standards."

In its April 29 reply brief defendant city thus responds to plaintiffs' contentions concerning the applicability of the EEOC Uniform Guidelines to urine testing:

Plaintiffs' focus upon the EEOC Uniform Guidelines on Employee Selection Procedures is an exercise in irrelevancy. There is no dispute that the City's criterion (non-use of marijuana or other illegal substances) is valid for the hiring or retention of police officers. Regardless of whether or not the EEOC Guidelines contemplate applicability to such testing, it is not disputed that if the melanin theory reflected fact, the testing would be racially discriminatory.

In Shield Club v. City of Cleveland, 8 E.P.D. para. 9614 at 5635 (N. D. Ohio July 6, 1974), this court directed the Civil Service Commission to draft a set of written standards that will prohibit and prevent any racially discriminatory practice or procedure in all aspects of the screening of persons (male and female) who have passed the CPD written entrance examination. Not intending to exclude any aspect not herein mentioned, the court directs that the foregoing standards shall apply to the personal history interview, and background investigation of each person, the medical examination, and the psychological and/or psychiatric examination (emphasis presently added).

This July 6, 1974 direction to the Civil Service Commission was reaffirmed in this court's order of April 22, 1976. The Commission was further directed on July 6, 1974 to formulate standards that "will prohibit and prevent any racially discriminatory practice or procedure in all aspects of screening" of the persons who had passed the "CPD written entrance examination."

As seen, the above standards were to apply to "the medical examination." n7 The Civil Service Commission Manual of "Medical Standards and Requirements" (revised 8-21-78) (hereafter the Manual) requires each eligible applicant to receive "a complete and thorough physical examination." The Manual includes eight categories of examination. The eighth category, entitled "Laboratory," lists as one of three items "Urine for complete urinalysis." Thereafter, a separate chapter meticulously details each of ten separate physical systems. In each chapter "causes for rejection" are specifically itemized by disease or other prescribed physical condition.

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n7 The report of the Civil Service Commission, found to be consistent with the court's order of July 6, 1974, was attached to and made a part of the court's order of April 22, 1976. The only mention of "Medical Examination" is contained in the "OVERVIEW OF SCREENING PROCESS." Nothing contained in said report, see for example section III "Further Grounds for Rejection of Candidates by the Safety Director" and paragraph B, is deemed to have restricted or prevented the Civil Service Commission from its later development and promulgation of its "Medical Standards and Requirements" for police and fire service applicants.

It is determined that the Civil Service Commission's "Medical Standards and Requirements" were developed by the Civil Service Commission pursuant to this court's order of July 6, 1974, which order was reaffirmed by and incorporated in pertinent part in the court's April 22, 1976 order. As seen, paragraph 2 of the amended consent decree (Section 9 of the consent decree) refers to these "previously approved screening procedures (Court order dated April 22, 1976)."

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The eleventh chapter, entitled "Other Medical Conditions," deals separately with nine different subjects. The first subject, "Drug Use and Abuse Not Addiction," lists four "causes for rejection"; the first cause is presently pertinent: n8

(a) Drug abuse characterized by:

(1) The evidence of use of any narcotic drug, amphetamine or hallucinogenic substance at time of examination when the use cannot be accounted for as the result of the advice of a recognized health care practitioner (emphasis added). n9

As noted, the Manual provides for compulsory "urinalysis" as part of the medical examination. While this urine testing requirement would embrace wide profile testing for "sugar" and other signs of disease, the compulsory urinalysis requirement is not restrictive. It is determined that its breadth embraces taking urine specimens to test for indication of current drug use.

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n8 The fourth cause permits waivers in "cases indicating use of marijuana (not habitual use)" under certain circumstances and providing, among other things, "there is evidence of current drug abstinence" (emphasis added).

n9 The categories of drug use "at the time of examination" that provide "causes for rejection" are broad enough to embrace drug substances that fall within 21 U.S.C. SEC. 812 (1982), Schedule I and Schedule II controlled drug substances. For example, Marijuana is a Schedule I drug. "Hallucinogenic substance" is a category that embraces marijuana, even if marijuana were not properly classified as a "narcotic drug." Marijuana "produces a number of physiological and psychological effects." Nat'l Org. for Reform of Marijuana Laws (NORML) v. Bell, 488 F. Supp. 123, 128 (D. D.C. 1980) (three judge court). The 21 U.S.C. SEC. 802 (17) (1982) definition of "narcotic drug" embraces "cocaine," an extraction from coca leaves, and cocaine is included within Schedule II controlled substances. Although pharmacologically classified as a "non-narcotic central nervous system stimulant" courts hold that it is within the prerogative of Congress to "classify cocaine as a narcotic for penalty and regulatory purposes," United States v. Whitley, 734 F.2d 1129, 1141 (6th Cir. 1984) and cases cited therein. Amphetamines are drugs that fall within both Schedule II and Schedule III controlled substances. 21 U.S.C. SEC. 812.

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Evidence in the record demonstrates that urine testing for the presence of marijuana and other controlled substances is carried out by the Safety Department Medical Bureau, identified as the "Medical Department of the Police and Fire Service" in the Manual. Thus, then Chief William T. Hanton described the urine testing, in a letter to police applicants, as "the final phase of your medical examination."

Consistently, the Medical Bureau Medical Director, Godofredo Domingo, M.D. notified a cadet in the 96th academy class that following a complete evaluation of your recent medical examination, you are classified (B) Medically Unacceptable for the following reason:

Positive testing for Cannabinoids (Marijuana) based on supplementary urine sample from October 26, 1985.

Dr. Domingo further notified the applicant that this was "in accordance with the medical standards and requirements for police and fire service applicants by the Civil Service Commission of the City of Cleveland." Obviously he was referring to the Manual. n10

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n10 Because urinalysis is properly analyzed as a component of the medical examination, it is unnecessary to discuss this court's previous ruling on the use of polygraph examinations, Shield Club v. City of Cleveland, 8 E.P.D. para. 9,614 (N. D. Ohio July 6, 1974).

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Thus, the Manual documents that "evidence of use of any narcotic drug, amphetamine, or hallucinogenic substance at the time of examination," unaccounted for by medical advice, at least since 8-21-78 has been a "cause[] for rejection" of an eligible police or fire applicant. This medical "cause for rejection," one of the medical standards and requirements of the city, thus underpins and particularizes the city's employment policy which denies "final appointment of any police patrol cadet who is a user of a controlled drug substance." Chief Hanton gave one justification for this employment policy in his testimony of December 16, 1985 before the Civil Service Commission. He testified:

I advised the recruits [on October 23 at the Police Academy] that since the tests had proved positive there was no way we could put recruits on the streets with hand weapons who were using illegal substances.

Based upon the non-delegable responsibility of the city through its police department to maintain public safety and to enforce and uphold state and federal laws and city ordinances prohibiting or criminalizing the possession, sale or distribution of controlled drug substances, and upon the entire record, it is concluded that the city is warranted in denying final appointment of any police patrol cadet who is a user of a controlled drug substance. n11

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n11 The term "controlled drug substances" as here used is intended to be congruent with the categories specified in Manual of Medical Standards and Requirements for Police and Fire Service applicants, "Drug Use And Abuse Not Addiction," Chapter XI, p. 30.

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As seen, plaintiff now concedes this employment principle. n12 Because this municipal employment policy has a self-evident governmental purpose it is concluded that this policy is "demonstrably job related" and the policy need not otherwise be validated. Furthermore, the particular medical standard under present consideration, that "evidence of use of any narcotic drug, amphetamine or hallucinogenic substance at the time of examination" is a "cause[] for rejection," is shown on this record not to be a "racially discriminatory practice or procedure." n13 When body fluids and particularly urine are sampled and subjected to objective testing that is scientifically accepted to show the use or nonuse of marijuana or other controlled substances, such testing is not inherently discriminatory. This assumes, as all counsel seemed to agree at the January 24, 1986 hearing (Tr. 45, line 17 to Tr. 46, line 9), that "chemical testing" operates in the same manner on the body fluids of minorities as it does on the body fluids of non-minorities. If that assumption is true no EEOC validation would be required. If the assumption is not true and the melanin theory "reflect[s] fact," urine testing would be, as the city concedes, "racially discriminatory."

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n12 See also Davis v. City of Dallas, 777 F.2d 205, 223-25 (5th Cir. 1985), cert. denied, 476 U.S. 1116, 106 S. Ct. 1972, 90 L. Ed. 2d 656 (1986).

n13 Following the use of this quoted language in its order of April 22, 1976, this court held on September 27, 1976 that "the Shield Club's discrimination suit against the Cleveland Police Department is based on the Fourteenth Amendment Equal Protection Clause." Later in the opinion, the court ruled: Applying the teachings of Washington v. Davis [426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976)] it is now manifest that a racially discriminatory purpose or policy in making assignments and transfers must be shown in order to establish the Shield Club's claim that assignments are made within the CPD in a discriminatory manner.

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III.

As seen, paragraph 2 of the amended consent decree of December 21, 1984 (paragraph 9 of the original consent decree of November 11, 1977) states in its first sentence:

The defendant shall utilize only such selection criteria for the hiring of police officers as are non-discriminatory and demonstrably job related in a manner guided by the EEOC Guidelines on Employment Section Procedures.

While this sentence places "and" between nondiscriminatory and "demonstrably job related," the word "and" will be construed as "or" to foster the purposes of the Consent Decree. Thus, two alternate standards were provided. The permissible selection criteria must be: (1) nondiscriminatory or (2) demonstrably job related in a manner guided by the EEOC Guidelines on Employment Selection Procedures.

As for the provision that selection criteria must be nondiscriminatory the past history of the case dictates that to violate the standard a racially discriminatory purpose or policy must be manifested. n14 However, it is not likely that Shield Club has this meaning of nondiscriminatory in mind when it urges in its first brief that

Dr. Woodford's comments warrant careful scrutiny of the drug tests by the court and the parties to determine if the city is complying with the requirement of para. 12 of the Amended Consent Decree which requires non-discriminatory selection criteria for the hiring of police patrol officers.

Shield Club's reliance on Dr. Woodford's melanin theory to support its contention that the "Emit and RIA screening tests may have been racially biased" appears rather to be based on a disparate impact claim. Previously in its first brief, under the heading of "ADVERSE IMPACT AND DEFENDANTS' RESPONSIBILITIES UNDER CONSENT DECREE," Shield Club states:

A selection procedure is considered discriminatory under the Uniform Guidelines where it has an adverse impact on the employment opportunities of members of any race, sex or ethnic group [29 CFR SEC. 1607.3(A)].

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n14 Reasonably construed, this "racially discriminatory purpose" requirement of the 1976 decision, supra note 13, was adopted a year later as the first selection criteria, i.e. nondiscriminatory purpose" in paragraph 9 of the 1977 consent decree. The alternate selection criteria standard is that the selection criteria be "job related in a manner guided by the EEOC Guidelines on Employment Selection Procedures." To challenge a selection criteria under this alternate standard a statistical showing of disparate impact as threshold or prima facie proof of racial discrimination is required. New York City Transit Auth. v. Beazer, 440 U.S. 568, 584, 59 L. Ed. 2d 587, 99 S. Ct. 1355 (1979).

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Of course, the guidelines' "Purpose" includes the statement that "these guidelines do not require a user to conduct validity studies of selection procedures where no adverse impact results." 29 C.F.R. SEC. 1607.1(B). Moreover, "Use of a selection procedure is in compliance with these guidelines if such use does not result in adverse impact on any race ." 29 C.F.R. SEC. 1607.16(C). Hence the court will examine the adverse impact contentions of the plaintiffs. The court proceeds with this examination although it previously has determined that for the reasons given neither the City's policy disqualifying from employment users of marijuana or other drug controlled substances nor the use of urine specimens requires validation to show that either the policy or the assays are job related.

Pointing to the results of the October 21, 1985 test and calculating the application of the "four-fifths rule" in the EEOC Uniform Guidelines, plaintiffs conclude that the defendants' drug screening test has clearly had an adverse impact upon the minority cadets and clearly creates an inference of discrimination under the Uniform Guidelines.

In response to plaintiffs' disparate impact argument, the city represents that in the interim SmithKline has performed assays in November 1985 on urine samples of 90 persons whose names appeared on the then current civil service police eligible list and on urine samples of 45 (of the 90) who comprised the 96th Police Academy class and who were tested on May 12, 1986. The city states that as to the group of 90 persons tested in November 1985, 4 of 42 minority persons and 3 of 48 non-minority persons tested positive for marijuana use. The city has also reported to the court that on May 12, 1986, each of the 45 members of the current Police Academy class, which persons were appointed on February 24, 1986, consisting of 23 minority persons and 22 non-minority persons, submitted urine samples which were sent to SmithKline Bio-Science Laboratories for drug testing. Each and every member of the class tested negative for marijuana.

The city has provided no further information to the court with respect to the two drug abuse screenings performed subsequent to the first, 95th academy class testing.

Assuming the same or similar testing procedures were used in the November 1985 and May 12, 1986 tests, the aggregate results may be considered. See Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1257 & n.2 (6th Cir. 1981); see also Fudge v. Providence Fire Department, 766 F.2d 650, 656-57 (1st Cir. 1985) (the court held that "lumping" of test statistics is permissible only if "testing episodes" are "sufficiently similar"). So combined, the aggregate statistics vitiate plaintiffs' claims of adverse impact.

Plaintiffs' only reply to the city's statements concerning the additional urinalysis performed on the subsequent academy classes has been to point out that "neither the plaintiffs, the Court, the FOP nor the CPPA has had access to the results and underlying data." Apart from Dr. Woodford's theories examined in Part IV, but assuming the city's representations are accurate, plaintiffs cannot use the disparate impact of the city's drug screening program as a springboard and justification for further discovery of "the results and underlying data" under the amended consent decree. Accord, New York v. Beazer, supra; General Electric Co. v. Gilbert, 429 U.S. 125, 137, 50 L. Ed. 2d 343, 97 S. Ct. 401 n. 14 (1976) (Griggs burden of showing job-relatedness arises only after discriminatory effect has been shown); 29 C.F.R. SEC. 1607.1(B). Discussion of the production of the results of the October 26 and May 12 testing is deferred until Part V. In the intervening part the court takes up Dr. Woodford's melanin theory.

IV.

As seen, plaintiffs principally rely on the melanin theory of Dr. James Woodford on how race bias can occur in standard marijuana screening tests. Dr. Woodford's first hypothesis regarding melanin fragments is set out above, supra slip op. at pp. 4-5. As a second hypothesis, Dr. Woodford asserts that whole melanin distributed through the body and blood stream "tends to hold and congregate drugs" and thereby "change the marijuana clearance and detection time for individuals."

Plaintiffs take the position that "Dr. Woodford's comments warrant careful scrutiny of the drug tests by the court" to determine compliance with paragraph 2 of the amended consent decree. As seen the city's principal response to Dr. Woodford's affidavit is a request that plaintiffs supply "empirical bases" for the melanin theory. In addition, the city represents that it "stands ready to seriously consider [the empirical bases], and in the event [the melanin theory's] validity is apparent, to alter its testing procedures accordingly." In turn, plaintiffs condition their accession to this request for evidence on the city's agreement to allow the plaintiffs' original discovery requests.

A court scrutinizes experts' affidavits when "unsupported assumptions" and "theoretical speculations" are not backed up with "specific facts" or "grounds reasonably relied upon by experts in a particular field forming opinions or inferences upon the subject." United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir. 1981) (quoting Merit Motors, Inc. v. Chrysler Corp., 187 U.S. App. D.C. 11, 569 F.2d 666, 672-3 (D. C. Cir. 1977)); see Bieghler v. Kleppe, 633 F.2d 531, 534 (9th Cir. 1980). More to the point, "opinion testimony that would not be admissible if testified to at trial may not properly be set forth in an affidavit." J.W. Moore & J.C. Wicker, 6 Moore's Federal Practice para. 56.22[1] at 56-1315 and -1316. The admissibility of opinion testimony with respect to a scientific principle or discovery is usually determined by the application of the "general acceptance" principle enunciated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D. C. Cir. 1923). The Sixth Circuit has defined "general acceptance" under Frye as "synonymous with reliability. If a scientific process is reliable, or sufficiently accurate, courts may also deem it 'generally accepted.'" United States v. Distler, 671 F.2d 954, 961 (6th Cir. 1981) (quoting United States v. Franks, 511 F.2d 25 (6th Cir.), cert. denied, 422 U.S. 1042, 45 L. Ed. 2d 693, 95 S. Ct. 2656, 95 S. Ct. 2654 (1975)).

The inquiry whether methods or theories are generally accepted as reliable in the field can involve determining if they have received "a significant degree of national and international recognition," Distler, supra 671 F.2d at 961-62; if published or unpublished scientific literature exists relating to the subject matter, see United States v. Stifel, 433 F.2d 431, 440-41 (6th Cir. 1970), cert. denied, 401 U.S. 994, 28 L. Ed. 2d 531, 91 S. Ct. 1232 (1971); and if an expert's tests have been duplicated or if authority exists in the field for novel theories, see United States v. Brown, 557 F.2d 541, 557 (6th Cir. 1977).

These standards assist the court in determining how to proceed upon plaintiffs' discovery request and defendant city's counter-request for a showing of the "empirical bases" for Dr. Woodford's conclusions. Dr. Woodford's affidavit outlines two hypotheses supporting his statement that dark skin tone "could" affect the outcome of an EMIT, RIA or GC/MS marijuana screening test. Dr. Woodford does not refer at any point in his affidavit to any reported or unreported laboratory or scientific experiment conducted, by himself or by any other scientist or technician, to support or verify his two hypotheses. He does refer, however, to general data and specific situations in which black persons tested positively for marijuana use at a higher rate than for white persons. He makes the statement "my studies indicate that positive results for blacks in EMIT, RIA, and GC/MS tests can be the result of melanin interference," affidavit para. 6 at 6, but he does not discuss or further elucidate the "studies" mentioned. He refers to one case in which he was "able to demonstrate through laboratory testing an absolute correlation between marijuana positive and melanin positive results." Id. This cryptic statement alludes to a "laboratory testing" but does not on its face indicate that the correlation observed between the two values "marijuana positive" and "melanin positive" can be attributed to the interference theory which he has postulated.

Defendant city presents several sources disputing the validity of Dr. Woodford's melanin interference hypothesis. Most significantly, defendants refer the court to the results of a study published in the Journal of Analytical Toxicology, July/August 1985 issue. Published in the form of a detailed letter to the editor, Dr. M.A. Elsohly, et al., from the University of Mississippi Research Institute of Pharmaceutical Sciences and Department of Pharmaceutics, developed and conducted a study to ascertain whether individuals with high serotonin levels or blacks with high melanin levels would interfere with either the screening or confirmation of the urinary metabolite signaling the presence of marijuana use. Dr. Elsohly, et al. concluded that the concern that certain indole carboxylic acids, particularly in melanin and serotonin metabolites, might interfere in the screening and/or confirmation of the THC-COOH [marijuana metabolite] in urine is totally unjustified.

The defendants also observe that Dr. Woodford's conclusions are inconsistent with the results of the November 1985 and May 12, 1986 testings performed by the city.

The court has before it, then, Dr. Woodford's affidavit outlining his hypotheses, the city's representations on the race-neutral results in the November 1985 and May 12, 1986 testings, and the materials submitted by the city which in varying degrees contradict the conclusions of Dr. Woodford (these include the published Elsohly study and the materials identified in the margin). n15

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n15 The court finds it remarkable that the EMIT test, for example, in use in this country now for more than 10 years (see Testimony of Dr. Joyce Chang, SVYA Corporation technical director, Transcript of August 28, 1984 Hearing at 41, in Higgs v. Wilson, 616 F. Supp. 226 (W. D. Ky. 1985)), has thus far escaped detection of such a serious flaw.

On the contrary, Dr. Joyce Chang testified in Higgs v. Wilson that SYVA Corporation has analyzed over 175 substances and has yet to discover a substance that the EMIT test falsely identifies as a cannabinoid. Transcript of August 28, 1984 Hearing at 56, 89. Pursuing Dr. Chang's admission that some false positives could nevertheless occur in EMIT tests, Judge Johnstone pressed the following question:

So, what I'm driving at, I think, is what you're saying a false positive is would be the result of operator error or some sort of a procedural error in the handling of the sample or the running of the test and not because of other substances in the donor's system?

Dr. Chang answered: I say that today. I probably would not have said the five years ago when we first came out because how accurate a test is gets proved with time. As time goes on, I feel greater and greater confidence in the accuracy of the test. Yes, I do say that.

Id. at 111. Although Dr. Chang was not questioned on the misidentification of melanin fragments for cannabinoids, her conclusions are in direct contrast to Dr. Woodford's statement in his affidavit that "dietary interferences and interferences from medication are not well understood in urinalysis and can cause false positive results." Affidavit para. 3 at 3. See also I. Sunshine, et al., Detection and Confirmation of Urinary Cannabinoids, Journal of Analytical Toxicology 156 (July/August 1985); but see Storms v. Coughlin, 600 F. Supp. 1214, 1222 (S.D.N.Y. 1984) (occurrence of false positives is a question of fact that survives a motion for summary judgment).

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In this state of the record, there is not a sufficient factual predicate to support Dr. Woodford's melanin interference hypotheses to warrant this court, as the trier of fact, as well as the judge charged with construing and applying the pertinent law, to grant Dr. Woodford access to the SmithKline test data for application of his racial bias theory. However, if he should show sufficient scientific support for his hypotheses this would be enough to presume an adverse impact on the class of minority cadets.

When and if that happens the court may grant plaintiffs' request that Dr. Woodford or some other toxicologist be permitted to review results of the drug screenings. However, until Dr. Woodford's theory is demonstrated to be more than an unsupported assumption or speculation the court declines plaintiffs' request that he see and examine these results.

In order to determine whether or not the melanin interference theory is "reliable, or sufficiently accurate," Distler, supra, 671 F.2d at 961, the court directs plaintiffs to supplement Dr. Woodford's affidavit with creditable and authoritative data that respond to the following subjects and questions: n16

1. Dr. Woodford's statements in para. 4 of his affidavit,

specifically:

a. That melanin occurs in urine as conjugated fragments; b. That melanin fragments closely resemble urinary cannabinoid fragments in physical size and positioning of atoms and bond lengths; c. That some melanin fragments have chemical dimensions and atoms to fit into the EMIT and RIA antibody slots; d. That some melanin fragments have the same mass to charge ratio which the GC/MS test can mistake for cannabinoids; e. That the GC/MS spectral region has been identified as containing large amounts of melanin derivatives.

2. Dr. Woodford's statements in para. 5 of his affidavit, specifically:

a. That whole melanin tends to hold and congregate drugs; b. That high melanin content can change the marijuana clearance and detection time for an individual.

3. Records of armed forces labs, referred to by Dr. Woodford in para. 6 at page 6 of his affidavit, that made changes in their testing procedures based on his recommendations.

4. Some proof of the "studies," referred to in para. 6 at page 6 of the affidavit, that indicate that positive results for blacks in EMIT, RIA and GC/MS tests can be the result of melanin interference.

5. Provide some data of the "laboratory testing" for melanin interference performed by Dr. Woodford, referred to in para. 6 at page 6 of the affidavit, that allowed him to demonstrate an absolute correlation between marijuana positive and melanin positive results.

6. Dr. Woodford's statements in para. 6 at page 7 of his affidavit, specifically a. That he demonstrated at the hearing how he could identify black officers by the signal area of their fragment ion accumulation; b. That the additional signal area accounted for higher quantitative results for black personnel.

7. Identification of the case involving "Atlanta City Policemen and Firemen" referred to in para. 6 at page 6-7 of the affidavit.

8. With respect to Dr. Woodford's statements in para. 6 at page 7-8 of his affidavit regarding the "discrepancy between the levels detected by the screening tests and those found in confirming tests":

a. Identify the "other researchers" who have "noted" this discrepancy, and the conclusions they reached. b. Identification of the study referred to on page 7 that compared specimens using different tests and reported that levels detected on EMIT and RIA do not correlate well with values obtained by GC/MS. c. Some data that show that only a fraction of the total melanin interferences may filter through to the GC/MS detector. d. Some data that refute the several sources referred to by defendants concluding that GC/MS test values theoretically should be lower than the EMIT and RIA values because GC/MS identifies only one THC metabolite.

9. Data that support the statement in para. 8 of the affidavit that the GC/SIM test is "less specific and less thorough than GC/MS," and that the GC/SIM test can have more racial bias.

10. Data that support the statement in para. 9 at page 9 that the results of cadets who showed above 20 ng/ml may be due to a combination of melanin interference and unintentional exposure.

11. More generally, has the melanin theory or any aspect of the melanin theory been tested with a scientifically acceptable experiment(s)? If so, provide data showing the design and conclusions of the experiment.

12. Data that show that the melanin theory has been published in any form or exposed in some manner for scrutiny by the scientific community.

13. Any data that scientifically challenge Dr. Elsohly's et al. experimental result disproving the melanin theory.

14. Ten of 20 minority cadets in the October 21, 1985 testing tested negative; 38 of 42 minority cadets in the November 1985 testing tested negative; and all of the 23 minority cadets in the May 12, 1986 testing tested negative. Data that supports why, if the melanin interference theory is valid, the above minority cadets and indeed all individuals with dark skin tone did not test positive on EMIT, RIA and GC/MS tests?

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n16 None of these subjects are intended to pertain to those portions of Dr. Woodford's affidavit that appear to attack the general accuracy and reliability of the tests, e. g. his challenges to cut off scores, or the four graphs in Court's Exhibit 6 which suggest to Dr. Woodford that GC/SIM rather than GC/MS tests were performed. For cases reviewing the general accuracy of the EMIT cannabinoid assay see, e.g., Wykoff v. Resig, 613 F. Supp. 1504, 1508-12 (N. D. Ind. 1985) (collecting cases); Peranzo v. Coughlin, 608 F. Supp. 1504, 1512-15 (S.D.N.Y. 1985); Jensen v. Lick, 589 F. Supp. 35 (D. N.D. 1984). Cf. Pella v. Adams, 638 F. Supp. 94 (D. Nev. 1986); Jones v. McKenzie, 628 F. Supp. 1500, 1505-07 (D. D.C. 1986); Storms v. Coughlin, supra, 600 F. Supp. at 1221-22.

The court does not regard it relevant to its scope of inquiry in this matter to deal with alleged errors of judgment or calculation by SmithKline in the conduct of the tests. The impact of such errors, if any, would appear not to bear on the plaintiffs' class-based claim of racial prejudice. Rather, the impact would be individual in nature.

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At a court meeting to be scheduled, the city is directed to produce for examination by the court, plaintiffs' counsel, and counsel for each intervenor all the documents that will reflect and verify the results of all urine testings conducted by the city with respect to police academy cadets subsequent to the October 21, 1985 testing.

At the same meeting plaintiff is directed to produce for examination by court and counsel all of the Dr. Woodford materials/submissions specified slip op. At pp. 28-30.

Apart from Dr. Woodford's theories discussed in Part IV, should the documentation of the EMIT and other assays reflect the results reported by the city for the testing of the 96th academy class, plaintiffs' claim of adverse discriminatory impact will fail. There will remain only the patent adverse impact of the EMIT, RIA and GC/MS tests, should the plaintiffs be able to sufficiently support the scientific acceptability or reliability of Dr. Woodford's melanin theory discrediting these assays. Upon examination of the documents to be exchanged and after oral argument, the court, consistent with the foregoing Memorandum and Order, will determine the future course of Shield Club's paragraph 7 discovery requests.

IT IS SO ORDERED.

MEMORANDUM AND ORDER

In accordance with the court's memorandum and order of July 15, 1986, and the court's findings and conclusions at the in-court hearing of October 17, 1986, the court enters the following findings:

1) based upon the in-court representations of plaintiffs' counsel the court finds that plaintiffs have not produced and have given no indication that they can produce the required documents and data to comply with the 14 questions in the court's July 15, 1986 memorandum and order regarding Dr. Woodford's melanin theory;

2) based upon the court's review of the records produced in court on October 17, 1986 by defendant City of Cleveland pursuant to part V of the court's July 15, 1986 memorandum and order, the court finds that none of the 45 cadets of the 96th Police Academy class (23 minorities and 22 non-minorities) tested positively for the drugs assayed. Accordingly, the court determines that the plaintiffs have failed to prove their claim that the mandatory urine tests have had an adverse discriminatory impact upon minority police cadets.

Therefore, plaintiffs' request, under paragraph 7 of the amended consent decree of December 21, 1984, for additional discovery of data relating to the urine testing of police patrol cadets is denied.