The Massachusetts Appeals Court upheld a grant of unemployment benefits to a Boston Police Officer terminated for testing “positive” for cocaine on a hair test. In City of Boston v. George Downing , 06-P-1725 (Oct. 31, 2008), the Court ruled that the Division of Unemployment Assistance properly found that police officer did not use cocaine as alleged, based upon his repeated denials of drug use and his extensive efforts to establish his sobriety. While this decision only entitles the former officer to unemployment benefits (as opposed to reinstatement with back pay), it renews faith that a neutral factfinder can disregard drug use hysteria and instead conclude that hair testing is not sufficiently reliable method to determine that a police officer abused drugs.

The claimaint here, George Downing, served as a sworn Boston police officer for nine (9) years before the City terminated him for testing “positive” for cocaine on an annual hair test. The amount of cocaine allegedly found in his hair was barely above the minimum amount necessary to classify his sample as “positive.” Moreover, his tests would have been classified as “negative” if the City applied the original minimum cutoffs. The City has no other evidence that Downing used drugs. To exonerate himself, Downing produced independent drug tests that were negative for all drugs, repeatedly testified under oath that he did not use drugs, and appealed his termination to the Civil Service Commission. Downing also refused the City’s settlement offer, which involved a lengthy suspension and substance abuse rehabilitation. (In a sense, Downing was terminated for refusing the settlement offer).

Downing also filed a complaint against the City at the Massachusetts Commission Against Discrimination. He is one of nearly a dozen African Americans officers and recruits who have been fighting their termination (or bypass) from the Boston Police Department for allegedly “positive” results for cocaine on hair tests. These officers have been challenging the accuracy of hair testing, including whether it reliably shows voluntary drug use (as opposed to cocaine that naturally deposits itself into hair from the environment), and whether it produces results that are “biased.” They have filed claims with the MCAD (which are not being processed in federal court) and the Civil Service Commission.

Employees who lose their job (voluntarily or involuntarily) generally are entitled to receive unemployment benefits so long as they were not terminated for “deliberate misconduct in willful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy.” G.L. c.151A, §25. The DUA examiner (a.k.a. hearing officer) reviewing Downing’s unemployment claim agreed that he did not use cocaine. As the Appeals Court summarized, she:

explicitly credited Downing’s testimony because, as found by her, it was supported and bolstered by the following facts. First, Downing twice promptly had submitted himself to further and independent drug testing at his own expense, acts she concluded would be improbable had he in fact used drugs. Second, those two independent tests proved negative as to cocaine use. Third, Downing had refused to enter into a drug rehabilitation agreement even though doing so would have permitted him to remain employed by the department.

The Appeals Court upheld the agency’s grant of unemployment benefits. The Court rejected arguments that the City’s hair test is irrefutable proof of drug use.

Downing was represented by Sandulli Grace, PC Attorney Patrick Bryant (on behalf of the Boston Police Patrolmen’s Association, Inc.) in this case. Bryant also represents Downing and several other former Boston police officers, who were terminated for testing “positive” for cocaine, at the Civil Service Commission.