          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 Espinoza-
Madrigal, 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,
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
               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.




                                          - 3 -
               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.




                                       - 4 -
             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


                                     - 5 -
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 Cortés-

Irizarry 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


                                  - 6 -
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


                                    - 7 -
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


                                   - 8 -
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   drug-

abstaining 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.


                                             - 9 -
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


                                      - 10 -
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



                                - 11 -
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


                                      - 12 -
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.


                               - 13 -
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




                                  - 14 -
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.


                              - 15 -
            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 self-

evident 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



                                      - 16 -
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.


                                 - 17 -
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. § 2000e-

2(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




                                        - 18 -
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




                                        - 19 -
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


                                   - 20 -
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


                                     - 21 -
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.




                                   - 22 -
