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Casanova v. City of Chicago

June 30, 2003

CARLOS CASANOVA, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, ILLINOIS; THE CHICAGO, ILLINOIS, FIRE DEPARTMENT; CHICAGO FIRE FIGHTERS UNION, LOCAL #2, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO-CLC; AND EDWIN H. BENN, ARBITRATOR, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, Chancery Division No. 99 CH 5127 Honorable Robert V. Boharic, Judge Presiding.

The opinion of the court was delivered by: Justice Hall

UNPUBLISHED

Plaintiff-appellant, Carlos Casanova, a former firefighter with the Chicago fire department appeals from the circuit court's order dismissing his second amended petition to vacate the arbitrator's award. In the arbitration award, the arbitrator found that the City of Chicago (City) had demonstrated just cause for discharging Casanova after he tested positive for alcohol in violation of his "Last Chance Agreement" (LCA). The circuit court dismissed Casanova's second amended petition to vacate the arbitral award on the ground that he had no standing to contest the award. The circuit court also found that the arbitrator did not exceed his authority or violate public policy by finding that the City was not required to give Casanova a urine test to confirm the results of his breathalyzer tests.

On appeal, Casanova contends that: (1) the LCA is a separate agreement from the collective bargaining agreement (CBA), and therefore the LCA gives him standing, independent of his union, to bring suit to vacate the arbitrator's award; and (2) the arbitrator's finding that the City was not required to perform a urine test to confirm the breathalyzer test results amounted to a taking of his property interest without due process of law in violation of public policy. For the reasons that follow, we affirm.

FACTUAL BACKGROUND

On December 29, 1994, Casanova and a co-defendant were arrested by the Chicago police department for possession of cocaine. At the time of his arrest, Casanova was employed as a firefighter with the Chicago fire department (CFD) and was a member of the Chicago Fire Fighters Union, Local #2 (Union). As a result of the arrest, the CFD brought disciplinary charges against Casanova seeking his termination. Casanova filed a grievance protesting the threatened discharge. No disciplinary action was taken, however, as the CFD awaited the outcome of the underlying criminal charge. *fn1

On September 10, 1997, Casanova, in the presence of a Union representative, signed what is commonly referred to as a "Last Chance Agreement" or "LCA." *fn2 The LCA provided that the recommended discipline of termination pursuant to General Order 87-008 would be held in abeyance provided Casanova complied with the specific terms set forth in the employee assistance program and subjected himself to random testing for drugs and/or alcohol for a period of one year. Under his LCA, if Casanova tested positive for drugs or alcohol during this one-year period, either on or off duty, he would be subject to immediate discharge. The LCA also provided that Casanova waived any rights he may have had "to contest or challenge any matters arising out of the drug and alcohol screening conducted in this case." The grievance as to the originally sought termination was withdrawn at or about the same time the LCA was executed.

Thereafter, on the morning of September 30, 1997, 20 days after signing the LCA, Casanova underwent a randomly scheduled drug and alcohol test in accordance with the terms of his LCA. In answer to the question as to whether he had taken any medication within the past six hours, Casanova stated that he had taken Tylenol Robitussin cough syrup at about 6 a.m. The CFD then administered two breathalyzer tests for alcohol. The first test occurred at 9:46 a.m., and the second at 9:59 a.m. Both tests yielded a .04% positive alcohol level.

The CFD discharged Casanova by letter dated November 25, 1997, on the ground that his positive test results for alcohol constituted a violation of his LCA. In response, the Union filed a grievance challenging Casanova's discharge and, in accordance with the provisions of the collective bargaining agreement, submitted the matter to arbitration.

Hearings before arbitrator Edwin H. Benn were held on September 29, 1998, and October 6, 1998. The sole issue at arbitration concerned whether the CFD had just cause for discharging Casanova based on the positive test results for alcohol. The Union argued that the accuracy of the breathalyzer tests could have been compromised due to Casanova ingesting cough syrup containing alcohol just before the tests were administered. The Union asserted that the positive test results could have been caused by Casanova burping and regurgitating the cough syrup. The Union maintained that the cough syrup could have left trace amounts of alcohol in Casanova's teeth and mouth. The Union also argued that since Casanova's absorption of alcohol was slowed by hepatitis, the three tablespoons of cough syrup he had been taking every three to four hours before and on the date the breathalyzer tests were administered could have caused the positive test results.

In response, counsel for the City maintained that before Casanova took the breathalyzer tests there was no evidence that he was burping to any extent that would have caused regurgitation of the cough syrup. The City also presented evidence that pursuant to department protocol, the breathalyzer tests were given in such staggered time periods that any trace amounts of alcohol in Casanova's teeth and mouth would have dissipated by the time the tests were administered.

The City also presented the testimony of Doctor Arthur Prancan, an associate professor of pharmacology at Rush Medical College. Dr. Prancan testified that if Casanova had ingested three tablespoons of cough syrup containing alcohol between 6 a.m. and 8 a.m., this would not have resulted in a measurable concentration of alcohol at the time he underwent the breathalyzer tests, even taking into account his slowed absorption of alcohol due to hepatitis. Dr. Prancan opined that in order for a person of Casanova's weight (205 pounds) to produce a .04% test result at 9:46 a.m., he would either have to consume 17.75 ounces (2.2 eight-ounce bottles) of cough syrup containing 5% alcohol 20 minutes prior to the test, or consume 55.8 tablespoons (3.5 eight-ounce bottles) of cough syrup at 8 a.m.

The Union countered that in addition to the breathalyzer tests, the City should have performed a confirmatory test for alcohol on Casanova's urine specimen since he ingested cough syrup containing alcohol before taking the breathalyzer tests. The City responded that General Order 87-008 did not require urine tests for alcohol but, rather, permitted the use of a breathalyzer test to detect alcohol.

On January 3, 1999, the arbitrator handed down his award. The arbitrator stated that Casanova had failed to raise the hepatitis matter until the hearing and noted that after Casanova was diagnosed with hepatitis in 1988, he ignored his physician's instructions to abstain from all alcoholic beverages. The arbitrator determined that even accounting for Casanova's impaired absorption of alcohol due to hepatitis, the small dosages of cough syrup he claimed he consumed before taking the breathalyzer tests did not account for the .04% positive test results. The arbitrator also determined that pursuant to General Order 87-008, the City was not required to perform a confirmatory test for alcohol on Casanova's urine specimen. Accordingly, the arbitrator denied the Union's grievance, finding that the City had met its burden of proving just cause for discharging Casanova where he tested positive for alcohol in violation of his LCA. The Union did not challenge the arbitrator's decision.

On April 5, 1999, Casanova, represented by private counsel, filed a petition in circuit court to vacate the arbitral award. In the petition, counsel argued that the arbitrator exceeded his authority by finding that a confirmatory urine test for alcohol was not required before Casanova could be discharged. Counsel asserted that Casanova had a property interest in his employment, and that the arbitrator's denial of Casanova's grievance without requiring the City to perform a urine test to confirm the breathalyzer tests amounted to a taking of this property interest without due process of law in violation ...


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