Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 12 CH 45227. Honorable Sophia Hall, Judge Presiding.
For Plaintiff-Appellant, Cass T. Casper and Christina L. Adams of Teamsters Local 700 Legal Department.
For Defendants-Appellees, Anita Alvarez, Cook County State's Attorney, Chicago, IL (Daniel F. Gallagher, Deputy State's Attorney, Chief, Civil Actions Bureau, and James C. Pullos and Nile N. Miller, Assistant State's Attorneys, of Counsel).
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
[¶1] Plaintiff Mister Walker appeals from the circuit court's order affirming the administrative decision of defendants, the Cook County Sheriff's Merit Board (Merit Board) and Thomas J. Dart, Cook County sheriff (Sheriff), which found that plaintiff violated certain portions of the Sheriff's Drug Free Work Place Policy (drug policy) and warranted plaintiff's employment to be terminated.
[¶2] An investigation was opened after plaintiff's random urine screening tested positive for oxazepam. During the investigation, plaintiff provided multiple prescription bottles, including ones from 1995 and 2000, one of which included a medication that would yield a positive result for oxazepam. After a complaint was filed against plaintiff, the Merit Board conducted a hearing, concluding that the prescriptions were not valid prescriptions because of their age and plaintiff's use of the medications constituted an abuse of a prescribed drug in violation of the drug policy.
[¶3] On appeal, plaintiff argues that the decision of the Merit Board was against the manifest weight of the evidence because (1) there was insufficient evidence presented to show that plaintiff abused prescription medication; (2) no law or written rule prohibits the possession or use of legally prescribed medication after a certain period of time; (3) the drug policy is unconstitutionally vague; and (4) the allegations are not sufficient for discharge.
[¶4] Plaintiff, who was born March 17, 1939, was employed as a Cook County deputy sheriff for approximately 32 years beginning in October 1980. Plaintiff also
served 14 months in Vietnam for which he was awarded a Purple Heart and a Bronze Star. In April 2011, he was assigned to night bond court at the Criminal Courts Building. On April 14, 2011, plaintiff was randomly selected by a computer to submit a urine sample for drug testing. Plaintiff's sample tested positive for oxazepam, which is a benzodiazephine and is a controlled substance under schedule IV of the Illinois Controlled Substances Act (720 ILCS 570/210(c)(18) (West 2010)). Following the positive result, an investigation was opened and a complaint was filed. The following evidence was presented at the hearing on that complaint before the Merit Board.
[¶5] Investigator Sheryl Collins testified that she had been an investigator with the Sheriff's Office of Professional Review (OPR) for nine years. She received a notification regarding the positive result from plaintiff's sample. Collins conducted an interview with plaintiff on May 23, 2011. Also present at the interview were Deputy Sheriff James Williams, plaintiff's union representative, and Investigator Henry Hemphill, another member of the Sheriff's OPR.
[¶6] Collins testified that plaintiff told her that he had taken a " small portion" of prescription medication lorazepam the previous evening to help him sleep. Collins stated that plaintiff brought in several prescription bottles, but she did not review all the labels on them. She noted a prescription bottle for lorazepam dated from 1995, from which she said plaintiff indicated he had taken the pill. Collins stated that in her opinion that was not a current prescription. Plaintiff told her that the medication had been prescribed by a doctor who was now deceased. She said she told plaintiff to go to the veteran's administration hospital to see if they could assist him. She left the investigation open for approximately three months for plaintiff to bring her additional information.
[¶7] Collins' investigation was closed when plaintiff " failed to return to our office with a legal prescription demonstrating that he had a reason to be in possession of that controlled substance at the time of testing." She prepared a written statement from the interview and plaintiff initialed the statement. She stated that plaintiff's 1995 prescription was not a valid prescription at the time of testing and was in violation of the drug policy.
[¶8] On cross-examination, Collins was asked if there was a written requirement that the prescription be current, she responded, " That is the order of the Drug Testing Unit. I've not seen that in print, but that is the order of the Sheriff's Drug Testing Unit." Collins admitted that, to her knowledge, she has not seen this as a written policy. A commissioner on the Merit Board asked Collins if she was aware of a written policy where a " current prescription is defined by the Drug Testing Unit," Collins answered that she had not seen one. When asked if the drug policy " anywhere state[d] anything about current prescriptions," Collins essentially said this document does not contain " the word 'current.'" Collins also confirmed that the drug policy does not indicate that " taking a pill out of an older prescription bottle is a violation of that general order." Collins also testified that her written report stated that plaintiff had been legally prescribed the medication in 1995. She stated that the report also showed that plaintiff had no prior disciplinary history.
[¶9] On redirect, Collins testified it is not a violation of the drug policy to possess or
ingest drugs or controlled substances pursuant to a valid prescription. When she was asked whether the policy implied that drugs used pursuant to an invalid prescription would fall under the prohibited drugs, she said yes. In her opinion, a 1995 prescription was not valid when plaintiff used it in 2011. On recross, Collins stated that she did not know if the Illinois Controlled Substances Act imposed any time limitations on how long a prescription is valid. She stated that she received direction from the drug testing unit that a prescription is valid for one year.
[¶10] Peggyann Hynes testified that she was employed as the director of the sheriff's drug testing unit. She explained the random drug testing procedures used by the unit, including how plaintiff was selected and how the sample was collected. Once collected, the sample is sent to Pharmatech Laboratories, which has a contract with the sheriff's office, for testing. Hynes received a positive notification regarding plaintiff's sample from Pharmatech and forwarded the notification to OPR for further investigation. During the OPR investigation, if the employee provides a valid prescription to explain the positive result, then that information is sent to Hynes, who forwards it to Pharmatech for confirmation that the prescription would yield a positive result. If Pharmatech confirms that the prescription would cause a positive result, no case is filed with the Merit Board. Hynes testified that in this case, she never received a notification from OPR regarding plaintiff's positive test resulting from a prescription. Hynes said that unless OPR forwarded her prescription information, she would be unaware that an employee had a prescription.
[¶11] Hynes stated that she was " under the impression that a prescription is good for a year after it's filled. After 17 years, [she] would not say that was a valid prescription." On cross-examination, Hynes was asked what was the basis of that impression. Hynes responded that the source was her prescription bottles. She admitted she never saw plaintiff's prescription bottles. Hynes admitted that she had no knowledge of a limitation of a time period that prescriptions are valid under the Illinois Controlled Substances Act, federal law, or local city or county regulations or ordinances. Hynes also confirmed that the drug policy does not prohibit the taking of prescription drugs after a certain period of time and there are no other policies governing the use of drugs.
[¶12] Justin Pham and Kevin Kodama testified via telephone as expert witnesses. Pham was employed as a certifying scientist at Pharmatech and Kodama was employed as the laboratory manager at Pharmatech. Pham tested plaintiff's urine sample, which yielded a positive result for oxazepam. Pham testified that lorazepam would not test positive for oxazepam, but testified that diazepam would result in a positive test for oxazepam.
[¶13] Kodama testified about the laboratory and explained that the drug oxazepam was part of the benzodiazepine drug class, which also includes lorazepam and diazepam. He explained that the benzodiazepine drug class is " typically prescribed for anti-anxiety or [as] a sedative ***. And this is a prescribed medication, any benzodiazepine drug is a prescribed medication, so anyone taking that particular medication has to be under doctor's care."
[¶14] Plaintiff testified at the hearing that he was employed by the sheriff for 32 years, starting in October 1980. He was assigned to the Criminal Courts Building at 26th and California for 10 years prior to his termination.
[¶15] Plaintiff stated that he served in the Vietnam War and was exposed to Agent Orange. He suffered from medical conditions
stemming from that exposure and has taken lorazepam and diazepam by prescription at various times to help him sleep and for anxiety as needed.
[¶16] Plaintiff testified that after the April 2011 positive test, he explained to Collins that he was taking lorazepam and diazepam by taking one-quarter of a tablet occasionally before bed to help his nerves. He stated that he took diazepam the night before the drug test. He said he was under the care of Dr. Amin in April 2011.
[¶17] He also stated that he brought five prescription bottles to the interview with Collins, two bottles of diazepam and three bottles of lorazepam. He testified that Collins only reviewed two of the bottles he brought. Plaintiff testified that none of the bottles had an expiration date and the bottle indicated for the pills to be taken " as needed." He received a new prescription for lorazepam in May 2011 from his doctor. Plaintiff said he was unable to get a prescription for diazepam at that time because the doctor had switched to " something else." Plaintiff stated that he tested positive for benzodiazepine in a prior drug tests in 1995 and he brought his pharmacy printout indicating his medications and a note from his previous physician, now deceased. He also had a positive drug test for benzodiazepine in 1997 and he testified that he brought the " medicine [he] was taking" and a note from the same physician. From our review of the record, no disciplinary action occurred as a result of the prior drug tests.
[¶18] On cross-examination, plaintiff testified that he told Collins he took diazepam the night before his urine test. He admitted that one of the lorazepam prescription bottles he brought was from August 1995. Plaintiff also admitted that one of the diazepam prescription bottles was from March 2000. A commissioner noted that ...