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12/15/89 James J. Habinka, v. the Human Rights

December 15, 1989

JAMES J. HABINKA, PETITIONER

v.

THE HUMAN RIGHTS COMMISSION ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

548 N.E.2d 702, 192 Ill. App. 3d 343, 139 Ill. Dec. 317 1989.IL.1955

Petition for review of order of Human Rights Commission.

APPELLATE Judges:

JUSTICE COCCIA delivered the opinion of the court. LORENZ and PINCHAM,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA

Petitioner, James J. Habinka, appeals directly to this court from a decision of the Illinois Human Rights Commission (Commission) which held that petitioner failed to prove that he had been discriminated against by respondent, Lake River Corporation, Terminals Division (Lake River), on the basis of a legally cognizable physical handicap. Issues presented for review are: (1) whether the decision of the Commission that Habinka was not handicapped within the meaning of the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 1-101 et seq.) (the Act) was against the manifest weight of the evidence; (2) whether petitioner's heroin/methadone dependency constituted an actual handicap under the relevant provisions of the Act; (3) whether petitioner's heroin/methadone dependency, known to his employer, constituted a perceived handicap under the relevant provisions of the Act; (4) whether the evidence supports a finding that Habinka's drug dependency was related to his ability to perform his job; and (5) whether the evidence supports a finding that Lake River placed Habinka on an unpaid leave of absence and later terminated his employment for legitimate, nondiscriminatory reasons which he failed to prove were pretextual.

On November 20, 1982, Habinka filed a charge with the Illinois Department of Human Rights (Department) against Lake River, his former employer, alleging that Lake River had discriminated against him on the basis of a physical handicap, drug dependency. The charge further alleged that Lake River had placed him on a personal leave of absence approximately two weeks after learning that he was in a methadone maintenance treatment program, informing him that he could not return to work until he was "off [m]ethadone," although, as Habinka stated, "the fact that I was on the [methadone maintenance] program did not affect my ability to perform the job." On March 12, 1984, the Department, pursuant to its authority under the Human Rights Act, filed a complaint against Lake River with the Commission. The complaint alleged, inter alia, (1) "that Complainant is a physically handicapped individual in that Respondent regarded him as such because [he] is enrolled in a methadone maintenance treatment program"; (2) "that Complainant's doctors informed Respondent's officials that [his] participation in the . . . program would not affect Complainant's ability to perform his job duties"; (3) "that on or about July 13, 1982, Respondent presented [him] with the option of accepting a forced personal leave of absence or being discharged"; (4) "that . . . Respondent's Vice President of Operations, Rodney Foster, informed [him] that [Lake River] could not have a supervisor who was on methadone"; and (5) "that Respondent discriminated against Complainant by forcing [him] to accept a leave of absence due to his physical handicap which was unrelated to his ability to perform his job duties in violation of Section 2 -- 102 of the Human Rights Act." The complaint requested an order providing that Lake River reinstate Habinka to his former position at a rate of pay comparable to what he would have been receiving if the violation had not occurred, pay him lost wages, grant all accrued benefits and seniority status, and pay his attorney fees and costs. A hearing before Patricia A. Patton, the Commission's chief administrative law Judge, was scheduled for June 11, 1984.

Prior to the hearing, Lake River filed a motion to dismiss the complaint on grounds that it failed to state a cause of action because the condition complained of by Habinka, namely, participation in a methadone maintenance program, "does not constitute a handicap within the meaning of the Illinois Human Rights Act." On July 12, 1984, the chief administrative law Judge granted Lake River's motion, stating that the allegation that complainant is in a methadone treatment program did not set forth a "determinable physical or mental characteristic of a person," as required by section 1-103(1) of the Human Rights Act. (Ill. Rev. Stat. 1981, ch. 68, par. 1-103(1)), the section of the Act which defines "handicap." The order further stated that Lake River's alleged perception of Habinka's participation in a methadone program also did not suffice to meet the definition of a handicap as set forth in the Act, because "the definition of handicap is the same whether or not it is alleged to be perceived." Complainant was granted leave to file an amended complaint.

On August 17, 1984, Habinka filed his amended complaint, alleging, inter alia, that (1) "[he] has a history of physical dependence on opiates"; (2) "opiate dependency is a determinable mental or physical characteristic resulting from a disease or functional disorder"; (3) "the most appropriate treatment for [his] condition . . . includes the use of regular doses of the prescription drug methadone under the supervision of a licensed physician"; (4) "[he] is currently and at all times relevant to this case has been undergoing treatment for his . . . opiate dependency . . . under the supervision of a licensed physician [which] includes [m]ethadone"; (5) "as a result of the treatment program, [he] has become physically dependent on . . . [m]ethadone"; (6) "[his] physical dependence on [m]ethadone is a determinable mental or physical characteristic resulting from a disease or functional disorder"; (7) "[Lake River] perceives [him] to be physically drug dependent and handicapped because [he] is a participant in a [m]ethadone treatment program"; and (8) "[he] is handicapped within the meaning of the Illinois Human Rights Act . . . either in [ sic ] virtue of [his opiate dependency] or [his methadone dependency] or because of [Lake River's] perception of his condition of [drug dependency and methadone program participation]."

Following discovery, a four-day hearing on the matter was held before administrative law Judge Richard J. Gonzalez. Both parties presented the testimony of lay and expert witnesses, and Habinka's medical records and other documents were submitted into evidence. At the Conclusion of this proceeding, ALJ Gonzalez issued an interim recommended order and decision which concluded that the evidence presented by the parties sustained Habinka's complaint of handicap discrimination.

The ALJ's interim recommended order and decision were submitted to a three-member panel of the Commission for a final order and decision. On February 13, 1987, following written and oral arguments of the parties, the Commission issued an order reversing the ALJ's decision, with one panel member Dissenting.

On March 16, 1987, Habinka applied for a hearing of the case before the full Commission. His application was denied in an order signed by 10 of the 12 Commission members on July 2, 1987. He then filed a timely petition with this court for review of the Commission's February 13, 1987, order dismissing his claim.

The record reveals the following undisputed facts pertinent to this appeal. Respondent Lake River was at all relevant times a public storage facility. Complainant was initially hired by Lake River on July 24, 1969, and established a work and performance history that was excellent and often praiseworthy. He started as a laborer, and following military service, returned to work in July 1972 as a forklift driver in one of the company's antifreeze warehouses. Over the next 10 years, as he progressed to increasingly more responsible positions, he received consistently favorable performance appraisals and several letters of commendation for his work, and received regular pay raises. In 1980, he was asked to assume the position of "leadman" in another warehouse, earning $12.24 per hour. In March 1981, he was promoted to the position of "warehouse supervisor trainee," and soon thereafter to "warehouse supervisor," receiving an additional salary increase. His final performance review was in February 1982. At that time he was rated "above average" in achieving three out of five performance goals and "average" in two others. The review noted that the trend of performance since the last performance appraisal was "improving."

In late 1981, complainant began to experience severe cluster headaches and seizures. He had at least four seizures in 1981 and 1982, two of which occurred at work. Following the third seizure, in March 1982, he was hospitalized for three days. At this time his condition was labeled "seizure disorder" by a neurologist at Hines Veterans Administration Hospital in Chicago (Hines), and the drug Dilantin was prescribed. From March 1982 through mid-July 1982, his absences from work increased significantly. His absenteeism as recorded in company documents admitted into evidence shows that he was absent a total of 143.25 hours between January 1 and July 13, 1982, as compared with the other 34 salaried Lake River employees, one of whom accumulated 70 hours of absence during the same period and all others from 0 to 43.5 hours. During this period, his supervisor and upper management became increasingly concerned about the cause of his medical problems, including the severe headaches which he blamed for many of his absences, the repeated instances of "calling in sick," often on short notice, the effect of his absences on supervisory coverage, and the possibility of safety risks should more seizures occur. Finally confronting him in an effort to determine the underlying cause of his health problems, company managers learned that he was a participant in the methadone maintenance treatment program at Hines. The record clearly establishes that certain company officials were already aware of complainant's earlier problem with heroin addiction. In fact, Lake River had supplemented its employee group health insurance in 1978 in order to fully cover the cost of an in-patient detoxification program for him at Forest Hospital (Forest), a private facility in Des Plaines, Illinois. Habinka had successfully completed this program, returning to work completely "drug free" at the time. However, none of Lake River's management personnel knew in July 1982 that complainant had begun using heroin again in December 1979, had continued to use it, and had reenrolled in the methadone maintenance program at Hines in June 1981.

Upon learning of Habinka's participation in the Hines program in July 1982, several top-level management personnel, including the company president, met with complainant, his physician, and his counselor at Hines to gain more information about methadone maintenance treatment, what effects it might have on a person's ability to perform his job, and other possible modes of treatment. Following three such meetings and further Discussions, Lake River managers arrived at a decision to place complainant on an indefinite leave of absence, beginning July 13, 1982, without pay or benefits, during which time he was expected to deal with his health and personal problems. At a meeting on that date, at which Habinka was told of this decision, he apparently agreed to enter an in-patient detoxification program, involving a four- to five-week process, to completely detoxify from methadone as well as all illegal drugs. The evidence is conflicting, however, as to whether complete detoxification was made an express condition of continued employment. A letter mailed to complainant immediately following the July 13 meeting, and signed by Rodney Foster (Foster), Lake River's vice-president of operations, states in pertinent part:

"I want to summarize our Discussion of today to be sure that your leave of absence is clearly understood by both of us. We are asking that you take time off without pay or benefits to deal with your health and personal problems.

We want you to keep in touch with us at least monthly to keep us informed of your status. We are not planning to fill your position in the near future until we can, through Discussions with you and your doctors, determine your ability to return. Obviously, we cannot hold the position open indefinitely."

By August 10, 1982, Foster had heard that complainant was still not enrolled in a detoxification program. He drafted and signed a letter to Habinka which states in pertinent part as follows:

"On Tuesday, July 13, 1982, when you were asked to take a leave of absence for health reasons, you stated that your plans were to begin a detoxification program immediately. I have heard that you have not yet begun the detoxification program. . . .

I know that you are committed to resolving your health problems and are determined to prove yourself able to return to Lake River in a supervisory capacity. . . . Not having heard of a treatment plan other than the one you expressed on July 13, 1982, I am concerned. Please call me or stop by and let's talk about where you stand. I am still committed to giving you time to work things out, but . . . the time constraints are not unlimited and a good faith effort on your part is mandatory to success."

On October 3, 1982, having received no assurance that complainant was making satisfactory progress toward resolving his "health and personal problems," Lake River terminated his employment.

In addition to Lake River business records, documentary evidence presented at the hearing included 36 pages of complainant's medical records from Hines Veterans Administration Hospital, covering the period from May 29, 1974, through March 4, 1983. These records consist of notations and summaries of physicians and counselors, including the following entries. On May 29, 1974, a "final diagnosis" of "drug dependency -- heroin" was noted by complainant's physician. On July 29, 1974, "heroin addiction" was listed as an "established clinical diagnosis," and complainant was described as a "heroin addict for 2 1/2 years, on methadone program." A physician recorded that complainant was admitted for in-patient detoxification from methadone on June 2, 1977, by his own request. After reaching the point in the detoxification program where the methadone had been reduced to the 10-milligram level, complainant signed out of the program on June 12, 1977. He resumed participation in the outpatient methadone program. In a "substance review" of July 17, 1981, a physician noted that complainant "seem[ed] to be making some progress" and had tested negative for [illegal] opiates. On October 13, 1981, Habinka complained to his counselor that his current methadone dosage level was not high enough to prevent withdrawal symptoms, and admitted to using illegal drugs during the past weekend. His dosage was increased to 60 milligrams per day as of October 14, 1981. On November 12, 1981, Habinka complained of "more frequent migraine-like headaches," for which a physician prescribed the drug Inderal. His progress in the methadone program as of December 22, 1981, was recorded as "fair," and as of January 16, 1982, as "good." However, on February 2, 1982, he requested another increase in his methadone dosage. He also informed his physician that he had consulted a private physician for his headaches and that the physician had prescribed Fiorinal (with codeine). He complained of withdrawal symptoms, stating that he "would use street opiates if he [did] not get an increase." His dosage was increased to 70 milligrams per day as of February 6, 1982.

The medical records admitted into evidence further reveal that on March 16, 1982, a neurologist at Hines summarized complainant's condition upon discharge from observation following his third seizure. The "established clinical diagnosis" was given as "seizure disorder, etiology unknown." The results of physical and neurological examinations were "unremarkable." At this time, Habinka admitted taking "10 and 12 Darvon per day for headache." The neurologist prescribed Dilantin for his seizures, and his methadone treatment was resumed. By April 14, 1982, he was again complaining of withdrawal symptoms and admitting to "buying methadone on the street." His dosage was again increased. On June 1, his counselor recorded that complainant's progress in the methadone program was "poor," and that his supervisor [at work] was "aware of changes in [his] work" which were "brought to his attention." Three days later, his physician recorded that he "discussed with [the] staff the behavior and street opiate usage" of complainant, "who in less than one year went from 30 mg. methadone to 90 mg. methadone. [The] staff suggested that this will be the last trial to help [him]" not to use street opiates. The physician further noted that if opiate use continued, "[Hines] should refer [him] to another program and . . . start decreasing the methadone."

The Hines medical records also include the recorded observations, on July 12, 1982, of complainant's counselor following a meeting with complainant, his girl friend, and representatives from Lake River. He noted that he "was able to give [the representatives] some [information] about methadone and how we presently use methadone . . . at Hines." The counselor's entry for July 14 noted that Habinka reported that he had, in the counselor's words, "been given leave without pay until such time as he enters [an] in-patient unit to detox from all drugs opiates/methadone. [He] wants to go into [a] private hospital but his medical coverage will stop while on leave. [He] seems pessimistic about any inpatient treatment and overwhelmed at the thought of being drug free (methadone)." On July 21, 1982, the counselor recorded that Habinka was "requesting admittance to detox after being discharged from Forest Hospital because his insurance wouldn't cover it. Patient is using heroin about $175 per day." The following entry, by a physician, states: "esume maintenance at 90 mg. pending setting up of withdrawal schedule. If he's using heroin daily, he isn't ready for a therapeutic detox." On July 22, complainant requested withdrawal as an outpatient at 5 milligrams per day until he reached 60 milligrams, at which point he wished to be screened again for in-patient detoxification. He expressed concern that he had to be drug free in about 45 more days or he would "lose his job for sure." The records reveal that his attempt at slow detoxification as an outpatient was unsuccessful. On February 28, 1983, complainant was admitted to the in-patient drug detoxification ward at Hines for one week to stabilize on methadone. At this time, the staff physician listed the following pertinent clinical diagnoses for which treatment was given, in order of clinical importance: (1) opiate dependence -- heroin, Dilaudid, methadone; (2) drug abuse -- Valium, by history (other drugs); (3) alcohol abuse; (4) seizure disorder; (5) headaches. The summary report for this date also noted that complainant had two previous drug detoxification treatments at Hines, in 1975 and in 1976, and a third at Forest Hospital in 1978, but had "resumed usage of opiates" after each. As of March 4, 1983, complainant was discharged from the stabilization treatment and placed back on outpatient methadone maintenance at 100 milligrams per day. Habinka's own testimony at the hearing further revealed that in June 1983, Hines discharged him from its methadone program. He was given the option of either transferring to another program or detoxifying. The day after his discharge from the Hines program, he enrolled in the maintenance program at the Center for Addictive Problems, where he was enrolled at the time of the hearing. He also testified that he was employed at that time and had used no nonprescription drugs for the past year.

Dr. Edward Senay, a professor of psychiatry at the University of Chicago and obviously qualified as an expert in problems of drug abuse and treatment, testified as complainant's expert witness. Dr. Senay stated that he had personally treated at least 4,000 to 5,000 opiate-dependent persons, but had never treated or examined complainant.

Dr. Senay discussed medical studies which showed that repeated self-administration of narcotics creates changes in the brain and nervous system which are "more or less permanent which require constant replacement, something like the situation with diabetes." These changes can occur within one or two months of first taking the drug. While not irreversible, these changes are "very slow in [their] reversibility." They have remained detectable in former addicts who have been totally drug-free for months. Dr. Senay further testified that once opiate dependent, a person tends to develop a "career of episodes of readdiction," which he characterized as "repeated episodes of addiction, abstinence and readdiction," or "chronic relapsing." What treatment does is change the character of the person's "career" from one of readdiction with legal and physical problems, and overdoses, to one which minimizes the most serious effects of readdiction. At one point during direct examination, the following colloquy occurred:

"Q. Is opiate dependency a disease or functional disorder?

A. Well, you have got me in a bind because pragmatically I would regard it as a disease. Intellectually, I would not regard it as a disease."

Dr. Senay testified in considerable detail as to the use of methadone maintenance in the treatment of opiate dependency. He explained that methadone, like heroin, is an opiate. In methadone maintenance therapy, subintoxicating doses of methadone which suppress the opiate withdrawal system are substituted for the heroin a dependent person would buy illegally. The idea of narcotic substitution as a treatment, as in methadone maintenance, is to give someone a dose sufficient to suppress withdrawal symptoms for an entire day, but not sufficient to induce intoxication, clouding of consciousness, slowing of reaction time, or symptoms such as depression or irritability. Dr. Senay further stated that a person on methadone, correctly administered, can "drive a car, . . . teach school, or do any of the things required to make a living." His experience confirmed that people in methadone treatment programs could "mak[e] decisions that would involve substantial risks to people's financial, medical, or legal welfare." A person on methadone could be, for example, a trial lawyer, Judge, or surgeon, and it would be "absolutely impossible" for even a trained professional to tell if that person were on methadone. Dr. Senay also testified that there seem to be no health consequences associated with taking methadone over long periods, even at high doses. Questioned specifically about the relationship between methadone and seizures, Dr. Senay stated that as a general rule, there is no causal relationship between methadone or other opiates and seizure disorders. Nor are headaches a frequent complaint of persons on methadone maintenance.

Dr. Senay declined to characterize methadone maintenance as "the treatment of choice" for opiate dependency. He described it as "a treatment among a number of others," and one that is "elected by more addicts than any other treatment." Dr. Senay explained that, of participants in methadone programs, about one-third do well, in that they do not steal, take other drugs, or drink, and they interact well with their families and function well at jobs. A middle third are "sort of hung between the street and being straight." The final third "don't change very much" from their existence as street addicts. In addition to methadone maintenance, and entering a drug-free, group living community, detoxification is also used to treat opiate dependency. Dr. Senay stated that he had studied the question of detoxification for over a decade and that he "did not know anybody who is experienced in the field who believes that withdrawal has much to offer anybody as far as the long term goes." Detoxification is indicated, however, when a person desires it and is not going through a lot of stress at the time, such as would result from a divorce, loss of a job, or a new job. In answer to a hypothetical question regarding a person who had held a job for 10 years, had a long-term investment in the job, and had just found out that his job was in jeopardy, Dr. Senay stated that those factors would be "a contraindication" to detoxify.

On cross-examination, Dr. Senay agreed with the statements that (1) a successful methadone program contemplates that the addict stops taking the heroin and takes the methadone; and (2) all methadone maintenance programs envision, as clinical guidelines, a person taking the methadone as prescribed and not supplementing it with methadone, heroin, or other illegal drugs purchased on the street. He also stated that current Federal regulations require that withdrawal from all drugs, even methadone, be periodically discussed with patients in methadone maintenance programs. In his clinic, "if someone [did not] clean up after six or nine months from street drugs," he would be "administratively detoxif[ied]," i.e., "detoxified a couple of milligrams of methadone" each time he tested positive for street drugs. Finally, in regard to seizures, Dr. Senay agreed with the statement, appearing in a 1984 book which he authored, that "a history of adult onset of convulsions should raise suspicion of drug abuse." He further stated that while opiates would only rarely cause convulsions, a person "can get convulsions in withdrawal from alcohol, or any tranquilizer such as Quaaludes, Valium and Librium, Placidyls, Doridens. hose would be the drugs that [a person] would get convulsions from, not opiates."

Complainant testified regarding his history of drug use and his employment history and job responsibilities at Lake River. His testimony on these matters, where pertinent, is consistent with the facts as summarized above and revealed in the medical records. He stated further that he first used heroin while stationed overseas with the Army, and was a regular heroin user when he returned to Illinois in 1972. He reported to Hines in 1973 seeking relief from withdrawal symptoms and was enrolled in their methadone maintenance program. He elected to "pick up" his methadone three times per week, Tuesday, Thursday, and Saturday, permitting him to report to Hines only twice during the work week, at lunchtime. Following this schedule, he was only occasionally five minutes late returning from his half-hour lunch period as a nonsalaried employee at Lake River. After reenrolling in the Hines methadone program in June 1981, again electing to pick up his methadone Tuesdays and Thursdays at lunchtime, he told no one at a supervisory level in the company about his relapse or his participation in the program.

Complainant further testified that he suffered his first seizure in July 1981 while working in his office at Lake River. His immediate supervisor reported the seizure to Foster, who reported it to Ben Johnson (Johnson), Lake River's president. Complainant was rushed to a nearby hospital, where he told a doctor that he was enrolled in a methadone program. He recalled the doctor responding, "That's not it. What other drugs are you doing?" The doctor told him that if he were taking a lot of any tranquilizer, such as Valium, that would cause a seizure. Complainant assured the doctor that "that was not the case." Habinka further testified that he experienced his first severe headaches on Christmas day in 1980. These headaches became more severe after his seizures began, and he consulted a private doctor about pain relievers for them. The doctor prescribed Tylenol 4 and Fiorinal. Between July and November 1981, complainant testified that he was also taking, in addition to his daily dose of methadone, unprescribed Darvon and Valium, and "a lot of heroin." He recalled that following his second seizure in November 1981, Foster told him not to work alone in the warehouse, as he often did on overtime hours, or to do any high climbing. He also stated that just prior to his third seizure in March 1982, he was taking the Inderal and methadone as prescribed, as well as illegally obtained Darvon, Valium, Tylenol 4, and heroin when they were available. His third seizure occurred in a parking lot at Hines, where he was admitted to in-patient observation for three days and was diagnosed as having "seizure disorder" by a neurologist. Treatment with Dilantin began at this time.

Upon complainant's discharge from the hospital, Foster asked him for a "work release" letter from one of his doctors at Hines. Neurologist Karen Scardigli supplied one, admitted into evidence, which stated simply that "[complainant] was treated for Seizure disorder during hospitalization on Neurology ward from 3/13 -- 3/16. He is presently on Dilantin for Seizures and may return to work." When Foster later asked to speak to one of Habinka's doctors at Hines, Habinka agreed but told the doctor "to tell [Foster] everything except that [he] was taking methadone." In late March 1982, John Lisicich (Lisicich) became complainant's immediate supervisor. Habinka stated that at this time he was still experiencing dizziness after being placed on the Dilantin, and asked Lisicich for the week of April 5 to April 8 as vacation time, which was allowed. He told Lisicich that the Dilantin was causing side effects. He further stated that his headaches also caused him to miss work or to come into work late, after calling, and that he needed to keep doctors' appointments for tests at Hines and elsewhere.

On cross-examination, complainant admitted that he was taking, in April 1982, in addition to the Dilantin, Inderal and methadone as part of his regular treatment, Darvon, heroin, and street methadone in an irregular pattern determined primarily by availability. Complainant testified that he took more vacation time in June because he felt "uncoordinated" due to an adjustment in his dosages of Inderal and Dilantin, and told Lisicich at that time that he was taking both of those drugs. At some later time in June 1982, Habinka told his supervisor that he was in the methadone program and that he was leaving at lunchtime on Tuesdays and Thursdays to pick up his methadone. By the following day, Foster knew this as well and asked complainant whether company managers could speak to doctors at Hines to find out more about methadone.

Complainant further testified as to three separate meetings at Hines with representatives of Lake River. He recalled that the first meeting was attended by his physician, his counselor, the director of the methadone clinic, Foster, Lisicich, and himself. The meeting lasted for over an hour, and the doctor "explained everything about methadone." The doctor stated that methadone would not affect his job performance. Methadone would not affect a person's job performance "if he had his regular dosage every day without mixing it." To the best of his knowledge, no Hines staff member mentioned anything about his taking illegal drugs. Foster inquired of the doctor what was involved in taking a person off methadone. The doctor told Foster that if a person were "totally committed," he could detoxify from it. At the second meeting, attended by complainant, the doctor, the counselor, and Johnson, the methadone program was again explained. The counselor explained to Mr. Johnson that complainant needed to be totally committed to a methadone program for it to work. Habinka testified that the counselor "may have" told Johnson that he was not totally committed to the program at that time, because, in complainant's words, "I wasn't totally committed. I was taking street drugs." The Hines staff also informed Johnson that if complainant were totally committed to the program, he could detoxify, but at that stage and time, he was not ready. Complainant could not recall whether anyone at the meeting told Johnson that it would be dangerous for him to detoxify at that time. At a third meeting, attended by complainant, the same doctor and counselor, Foster, Lisicich, and complainant's girl friend, Deborah Curry, complainant recalled that many of the same things were discussed. The counselor stated that the long-term goal of methadone maintenance in general was "first to get clean [of street drugs] and then to get off the drug." He did not recall anyone telling Foster that it would be dangerous for him to detoxify. He further testified, on cross-examination, that he did not remember whether the fact that he was taking illegal drugs in addition to methadone was brought up by anyone at any of the meetings.

Complainant further testified that following the third meeting at Hines, held on the morning of July 13, 1982, Foster scheduled a meeting at Lake River for early that afternoon. Only Foster, Lisicich, Curry and complainant attended this meeting. Foster told him that he wanted him to take a leave of absence, as Habinka personally understood it, "to get off of the drugs . . . [and] to make myself personally healthy by not being on any drugs." He told Foster that he did not want the leave of absence and could "deal with it." Foster told him that he had no choice but to take the leave. When asked on cross-examination whether he had in fact been "pretty tardy and pretty absent up to that point," complainant admitted that he had been. Complainant further testified that he entered the in-patient detoxification program at Forest on the Monday following this meeting, but the Forest accounting department notified him the next day that he did not have insurance to cover the cost. He testified that he could not pay for the program himself and signed out of Forest, although he believed that he would be successful there because he had detoxified successfully at Forest once before, while he had never been successful at Hines. He began the detoxification program at Forest on July 19 and was there for "only three days."

On cross-examination, Habinka identified an undated letter which he wrote to Foster and Johnson after he was placed on the leave of absence. He did not testify as to a specific date or a more definite period of time when the letter was written or sent. This letter, admitted into evidence, requests the two men to reconsider permitting him to return to work in light of his record of loyal service to Lake River. It states in pertinent part:

"After Discussions with my counselor, we have decided a slow detoxification would be the safest way for me, since I am seizure-prone because of my epilepsy. I can detox at 2 ...


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