EMPLOYMENT CASES

• Jackson-Pitre v. DISA, Inc. et al., No. 2012-65346, Court: 011 (Tex. Dist. Harris County), decided January 13, 2014. The plaintiff took a Psychemedics hair test, which was positive for cocaine, and also an independent hair test with a different lab, which was negative. She was terminated based on the Psychemedics test. The court granted summary judgment for the defendants and dismissed the plaintiff’s claims, including negligence and defamation.

• Narcisse et al. v. DISA, Inc. et al., No. 2011-46, Sec. 14-1 (La. Div. Dist. Ct., Orleans Parish), decided May 30, 2012. The donor plaintiff was terminated for a cocaine-positive hair test. The court granted summary judgment for Psychemedics, dismissing the plaintiffs’ claims of fraud, defamation, and racial bias, as well as the claim that hair drug testing is prohibited in Louisiana.

• In the Matter of John Goldin, 908 N.Y.S.2d 678, 77 A.D.3d 475 (2010). The New York Police Department officer’s termination for cocaine use was upheld, and the court rejected his argument that his positive test resulted from passive exposure.

• Matter of Chiofalo v. Kelly, 893 N.Y.S.2d 552, 70 A.D.3d 423 (2010). The New York Police Department detective’s termination for marijuana use was upheld. The court relied on the Psychemedics test showing high drug levels, and rejected the detective’s claim that he inadvertently ingested marijuana through contaminated food.

• U.S. v. Sewell, United States Coast Guard, Atlantic Area (Virginia, October 2012). The defendant was found to have wrongfully ingested cocaine, and the board voted to separate him from the Coast Guard.

• U.S. v. Sullivan, United States Coast Guard, Pacific Area (Alameda, July 2009). The defendant was convicted of cocaine use in a court martial based on Psychemedics’ hair drug test results and urine test results.

• U.S. v. Redmond, Offutt AFB (April 2009). The defendant was convicted of marijuana use and discharged based on a Psychemedics drug test.

• U.S. v. Yox, Andrews AFB (July 2008). The defendant admitted and plead guilty to cocaine use after taking a Psychemedics hair drug test.

• In the Matter of New York Police Department Disciplinary Trials, Case Nos. 82337/06; 82251/06; 82184/06; 82283/06; 83905/08 (2008) and Case Nos. 83711/08 and 84301/08 (2009). The judges found that New York City police personnel ingested illegal drugs based on Psychemedics’ U.S. FDA-cleared test methods, laboratory certifications and licenses, as well as peer-reviewed publications.

• City of New York Civil Service Commission Action Item No. C06-865-A (December 6, 2006). The commission affirmed the New York Police Department’s determination that an applicant was not qualified for the police officer position based on his Psychemedics cocaine-positive hair test result. The commission found that Psychemedics’ wash procedures made it possible to distinguish between cocaine ingestion versus external contamination.

• City of New York Disciplinary Proceedings, Case No. 79863/04 (July 2006). The trial commissioner ruled that a police officer had ingested cocaine, and rejected his theory that an antibiotic caused the positive result, because that theory relates to certain urine screen tests, and not to Psychemedics’ FDA-cleared screen tests. The commissioner also found that Psychemedics’ five-step wash process negated the possibility that external cocaine exposure could cause a positive hair test result.

• City of New York Civil Service Commission Action Item No. C06-529-A (2006), a police applicant was disqualified because of his Psychemedics cocaine-positive hair test result.

• Samad Ali v. Raymond Kelly, Case No. 102749 (2004), the Supreme Court of the State of New York upheld the termination of a probationary police officer based on Psychemedics’ hair drug test. The court ruled that the officer’s subsequent allegedly negative urine test result merely showed that cocaine had not been ingested in the 48- 72 hours prior to the test, and therefore did not refute the positive hair test result.

• Stewart v. International Truck and Engine Corp., Case No. 01 C 2756, (U.S.D.C., Northern Dist. IL, July 2, 2002). The plaintiff alleged that hair drug testing had an adverse impact on African Americans. The court granted summary judgment for the employer and dismissed the case, finding that the absence of statistical evidence was fatal to the disparate impact claim.

• Scott v. The City of New York, et al., Civil Action No. 98-CV-1902 (ERK), (U.S.D.C., Eastern Dist. NY, March 21, 2001). The plaintiff’s claim of constructive discharge based on race and gender. The court granted summary judgment for the City and dismissed the case, relying on the plaintiff’s marijuana-positive hair test result and his prior admission of use.

• Jones et al. v. City of Chicago, Civil Action No. 99 C 8201, (U.S.D.C., Northern Dist. IL, November 28, 2000). The case involved claims of racial bias in hair testing. The court granted summary judgment for the City and dismissed the case, finding that not only was some of the evidence inadmissible, but also that “the remaining admissible evidence would be insufficient for a trier of fact to find that the [Psychemedics] hair test is more likely to result in false positive results for African-American applicants than for white applicants…”

• Cruse v. Whirlpool Corp., Civil Action No. 99-2129, (U.S.D.C., Dist. AR, June 23, 2000). The case involved claims that the Psychemedics radioimmunoassay test was racially biased against African Americans. The court granted the defendant’s motion for summary judgment, stating that “summary judgment is not appropriate unless all the evidence points toward one conclusion…” (citing Hardin v. Hussman Corp., 45 F. 3d 262 (8th Cir. 1995)), and finding that the plaintiff failed to offer any statistical evidence supporting her claim of racial bias.

• Gregory Hicks et al. v. City of New York et al., Index No. 119154 (1999). The Supreme Court of the State of New York upheld the termination of three officers based on positive Psychemedics drug test results.

• Brinson v. Howard Safir, et al., 680 N.Y.S. 2d 500, 255 A.D. 2d 247, (N.Y.A.D. 1 Dept. 1998). The court upheld the determination that a police officer’s Psychemedics drug test results were accurate. The plaintiff then filed suit in federal court, (E.D.N.Y. Civil Action No. 98-CV-2784 (ERK)(JMA)), claiming, in part, that he had not received procedural due process. In granting the defendants’ motion for summary judgment, the court found that the plaintiff was in fact afforded, and took advantage of, every opportunity to appeal his termination. The court also referenced the Appellate Division’s holding that “there was reasonable suspicion to order the testing . . . and there was no reason to doubt the accuracy of the test results.”

• Matter of Brown v. City of New York, 250 AD2d 546, 673 NYS2d 643, (1998). The court affirmed the New York Police Department’s discharge of a New York City police officer for failing a Psychemedics hair drug test, finding no merit in her claims of contamination and testing inadequacies.

• Nevada Employment Security Department et al. v. Cynthia Holmes, 914 P.2d 611 (Nev. 1996). The Nevada Supreme Court upheld the denial of benefits based on a stand-alone Psychemedics hair drug test result, stating as follows:

We acknowledge that there are, arguably, no certainties in science. See Daubert v. Merrell Dow Pharmaceuticals, Inc., ___U.S.___, 113 S.Ct. 2786, 2795 (1993). Nonetheless, we conclude that RIA [hair] testing especially when coupled with a confirmatory GC/MS test, is now an accepted and reliable scientific methodology for detecting illicit drug use.

…we conclude that Holmes’ ingestion of cocaine, subsequently proven by the [radioimmunoassay] screening and confirmatory GC/MS test constitutes misconduct within the definition of NRS. 612.385.

• Bass v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 627 So.2d 1321 (Fla. Dist. Ct. of Appeals, 1993). A corrections officer appealed from a hearing officer’s decision that her criminal justice certification should be revoked based on a positive urinalysis test. The court held that her negative Psychemedics test result was erroneously excluded, and that “the radioimmunoassay analysis of human hair to determine cocaine use is generally accepted in the scientific community.” On remand, the hearing officer disregarded the hair analysis results and a subsequent negative urinalysis result, and again recommended the revocation of the plaintiff’s certification. On her second appeal, the court affirmed the lower court ruling, stating that hair analysis should be admitted because it is “precisely the tool which is used when there is a claim of error in a urinalysis for cocaine.” Bass v. Fla. Dept. of Law Enforcement, 712 So. 2d 1171 (Ct. App. Fla 1998).

• Koch et al. v. Harrah’s Club, 5 IER Cases 1295, 1990 WL 448060 (Nev. Dist. Ct.). The court determined that the employer’s mandatory drug testing policy, which included Psychemedics’ radioimmunoassay screen, was valid and did not constitute an unlawful invasion of privacy.

PAROLE REVOCATION

• United States v. Medina, 749 F. Supp. 59 (E.D. N.Y. 1990). The court ordered a hair test to determine if a probationer had violated his parole by using drugs. Based on a positive Psychemedics hair test, the court revoked his parole, finding that extensive scientific writings established the reliability and acceptance of radioimmunoassay in forensic toxicology for the determination of cocaine use. The hair analysis was admissible under both the Federal Rules of Evidence and the older Frye standard, and the court took judicial notice of the scientific writings.

UNEMPLOYMENT INSURANCE APPEALS / ADMINISTRATIVE LAW JUDGE DECISIONS

• In the Matter of Claimant, Pennsylvania Unemployment Compensation Board of Review, Appeal 10-09-F-9637 (2011) and In the Matter of Claimant, Pennsylvania Unemployment Compensation Board of Review, Appeal 10-09-F-A579 (2011). The claimants tested positive for marijuana, and the referee found credible the testimony about Psychemedics’ chain of custody and testing procedures.

• In the Matter of Claimant, Louisiana Appeals Tribunal Docket No. C01016 AT 2008 (7/11/08). The tribunal concluded that the claimant was terminated after testing positive for methamphetamine in a Psychemedics pre-employment drug test. The tribunal found that the claimant was “well aware that the conditions of his employment depended on his passing a drug test [and] concluded that his actions were . . . [in] deliberate violation of the drug policy.” Citing R.S. 23; 1601(10).

• In the Matter of Claimant, State of New York Unemployment Insurance Appeal Board, A.L.J. Case No. 305-06949 (10/19/05). The appeal board affirmed the Department of Labor’s disqualification of the claimant from benefits based on his cocaine-positive Psychemedics hair test result, which violated the employer’s drug policy.

• In the Matter of Claimant, State of New York Unemployment Insurance Appeal Board, A.L.J. Case No. 105-03225 (5/09/05). The board affirmed the Department of Labor’s decision that the claimant was discharged for misconduct for failing a reasonable suspicion drug test. The board relied on his cocaine-positive Psychemedics hair test, finding there was no compelling evidence of a false positive from other substances he ingested.

• In the Matter of Claimant, State of New York Unemployment Insurance Appeal Board, A.L.J. Case No. 005-03930 (3/11/05). The board found that the claimant was properly discharged for misconduct, and that Psychemedics followed the proper chain of custody, decontamination, and testing procedures to confirm the presence of cocaine and its metabolites.

• In the Matter of Claimant, Louisiana Appeals Tribunal Docket No. N02312 AT 2004 (2/14/05). The tribunal affirmed the claimant’s discharge for misconduct for failing a random drug test, relying on his cocaine-positive Psychemedics drug test.

• In the Matter of Claimant, New York Appeal Board No. 477610 (4/7/00). The appeal board upheld a probationary police officer’s disqualification from benefits because he was terminated for willful misconduct (A.L.J. Case No. 097-08521). He argued that his cocaine-positive drug test results were caused by either contamination due to his exposure to crack cocaine vapors, or his “passive ingestion” of small amounts of cocaine. However, the board found that cocaine was present at 4-8 times the cutoff level, and that the presence of the cocaine metabolite benzoylecgonine made it unlikely that the claimant “passively ingested” cocaine. The board also noted that it had been demonstrated previously that Psychemedics’ wash techniques eliminated the issue of external contamination.

• In re Claim of Claimant, B 95-02542-000 (1996), the State of Ohio Unemployment Compensation Board of Review. The board overturned the hearing officer’s ruling that the claimant was discharged without just cause and was entitled to benefits. Expert testimony demonstrated the reliability of the Psychemedics hair test, which had detected marijuana in the claimant’s hair.

• In the Matter of Claimant, Nevada Appeal Case No. R7-1908 (1997). The claimant was ineligible for benefits after testing positive for marijuana. The Nevada Office of Appeals, citing Holmes and Medina, found that Psychemedics’ radioimmunoassay screen was a valid drug testing methodology and, when coupled with a confirmatory test, was an accepted and reliable scientific methodology for detecting illicit drug use.

• Psychemedics hair test results have also been upheld in the following employment matters: In the Matter of Claimant, State of New York, A.L.J. Case No. 006-07163 (2006); In the Matter of Claimant, State of New York, A.L.J. Case No. 099-17766 (1999); In the Matter of Claimant, State of New York, S.S.A. No. 120-42-0562 (1998); In the Matter of Claimant, State of Indiana, Case No. 93-1BA-110B (1994); and In the Matter of Claimant, State of New York, Index No. 121899 (1998).

ARBITRATIONS

• In the Matter of the Arbitration between Marathon Petroleum Refinery, Catlettsburg Refining, LLC and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local No. 8-00719, decided January 27, 2014. The arbitrator denied the grievance by an employee who, after a suspension and rehabilitation following a cocaine-positive urine test, took return-to-work urine and hair tests. The urine test was negative, but the hair test was positive for cocaine. The arbitrator focused on the Psychemedics wash, and found that the grievant’s “testimonial denials” were “insufficient to overcome the laboratory evidence of cocaine use.”

• In the Matter of Valero Refining Company Arbitration Case No. __________, (September 2010). The arbitrator ruled in favor of the company based upon a Psychemedics cocaine-positive hair test.

• In the Matter of Valero Refining Company Arbitration Case No. 183000116006, (September 16, 2007). The arbitrator ruled that the company was reasonable in terminating the employee based on his Psychemedics cocaine-positive hair test. He had worked in a safety-sensitive position in a safety-sensitive environment, and undertook a drug test in accordance with a collective bargaining agreement.

• In the Matter of the Valero Energy Corporation Arbitration Re 691600223006, Baton Rouge, LA (November 28, 2006). The arbitrator ruled for the company, stating that “the authenticity and chain of custody of the lab [Psychemedics] testing done on the samples … were compelling and persuasive.” Under Louisiana law, the claimant could be terminated at any time as long as that discharge was not based on any discriminatory or illegal motive. The arbitrator found that “evidence is quite compelling that the drug test results and analysis . . . indicate [the claimant] had violated the terms of [employment],” and, therefore, the termination was not illegal or discriminatory.

• Whirlpool Corporation and IUE, Local 808, (2006). The arbitrator accepted the grievant’s drug test results, stating, “Psychemedics subjected [his] hair sample to the most rigorous scientific testing processes available including mass spectrometry analysis.” The arbitrator also noted that “the U.S. Food and Drug Administration is a neutral governmental body with expertise on the necessary protocols and methodologies laboratories must follow to produce valid test outcomes. Since FDA has certified Psychemedics’ hair testing procedures as accurate and reliable, the Arbitrator finds that its test results merit acceptance…”

• Fraternal Order of Police, Lodge 5 and City of Philadelphia, Case No. 14-390-002180-03 (2005). The arbitrator found just cause to dismiss the police officer based on the Psychemedics cocaine-positive drug test. The arbitrator ruled that the City need not prove the means by which the illegal drug entered into the grievant’s body, and instead stated, “…where there is a positive, confirmatory test on record, the City’s burden under the just cause standard has been fulfilled.”

• International Truck & Engine Co. and International Union United Automobile Aerospace and Agricultural Implement Workers of America, Local 6, Grievance Nos. 150, 211, and 212, (2001). The arbitrator ruled that a positive Psychemedics hair test was a proper basis to terminate an AAAIW-covered employee on a Last Chance Agreement (“LCA”). The arbitrator stated, “…there is no basis on which to reject the finding of substantial cocaine usage . . . The inescapable conclusion is that Grievant violated a condition of the Last Chance Agreement as he was unable to pass the drug screen.”

• City of Boston and Boston Police Patrolmen’s Association, Case No. 16-1352 (2001). The arbitrator held that the reduction of cut-off levels for the confirmation of safety-net samples is scientifically reasonable and ensures the accuracy and integrity of the test.

• United States Steel Corporation and United Steelworkers decision, (Case No. 46,456) (2010). The arbitrator found that the chain of custody of the grievant’s hair sample was unbroken, that his hair was tested using Psychemedics’ FDA-cleared screen testing procedures, and that the presumptive positive result was then confirmed as positive for cocaine.

• United States Steel Corporation and United Steelworkers decision, (Case No. 46,423) (2010). The arbitrator found that the grievant’s hair test result was based on scientifically accepted methods of evaluating drug use. Credible testimony and exhibits confirmed that the chain of custody was unbroken, that his hair tested presumptively positive for carboxy-THC during screening, and that the screen result was confirmed by gas chromatography/mass spectrometry/mass spectrometry (“GC/MS/MS”).

• United States Steel Corporation and United Steelworkers decision, (Case No. USS-45, 186; USS-45,187) (2007). The arbitrator ruled that there was ample evidence of cocaine use based on the Psychemedics hair test results, and that the employer therefore had proper cause to discharge the grievant for drug use in violation of a last chance agreement.

• United States Steel, LLC and United Steelworkers of America decisions, (Case Nos. USS-42, 125; 42, 126; 42, 127; 42, 128; and USS-42, 273) (2001). The arbitrator ruled that a single positive Psychemedics hair test result was sufficient to support the determination that an employee used illegal drugs. In each grievance, he found that a negative hair test result reported by the testing lab APL/AML through Labcorp did not raise doubt about the validity of the previous Psychemedics test result.

• United States Steel, A Division of USX Corp. and United Steelworkers of America, Local 1557, Case No. USS-38, 287 (1999). The arbitrator ruled that the employee was properly discharged for material violation of an LCA, stating:

We find that hair testing for drugs is legitimate under the LCA and scientifically valid. Psychemedics’ wash procedures are effective in removing environmental contamination. The 5.0ng/10mg cutoff level for cocaine is appropriate in light of field studies. There was no bias here on the basis of race or hair color. The chain of custody was unbroken. The Company has satisfied us that Grievant ingested cocaine during the period covered by the Last Chance Agreement.

• Anheuser-Busch, Inc. union arbitration, October 1999. The arbitrator upheld the use of body hair for analysis.

• Anheuser-Busch, Inc. union arbitration, July 1999. The arbitrator found no merit in the union claims of improper specimen collection and age, race and gender bias relating to slow hair growth.

• Anheuser-Busch, Inc. union arbitration, August 2000. The arbitrator found that random hair testing of employees in safety-sensitive positions did not violate their state constitutional rights to privacy. The Psychemedics hair test was deemed “a reliable method for detecting employee drug use, [which] therefore served to further the Employer’s legitimate safety interest.”

• Hair analysis was also upheld in the following arbitrations: US Steelworkers Local 4134 & Lone Star Steel Co., Case No. D22-96 (1997); Battle Mountain Gold Co. & Operating Engineers Local 3 (1998); Cooper Tools and United Automobile, Aerospace, Agricultural Implement Workers of America, AFL-CIO, Local 1774, Grievance No. 005 (2000); United States Steel, a Division of USX Corp. and United States Steelworkers of America, Local 1014, Case Nos. USS-41, 820 (2001) and USS-43, 080 (2003); In the Matter of Employee and Kraft Foods, Fullerton, CA; and In the Matter of Employee and Kraft Foods, Tulare, CA (2007).