Taylor v. O'GRADY
| Citation | 669 F. Supp. 1422 |
| Decision Date | 22 September 1987 |
| Docket Number | No. 86 C 7179.,86 C 7179. |
| Parties | Yvonne L. TAYLOR, Charles Edwards, and Jean S. Jackson, individually and on behalf of all others similarly situated, Plaintiffs, v. James E. O'GRADY, in his official capacity as Sheriff of the County of Cook, Illinois; Phillip T. Hardiman, in his official capacity as the Executive Director of the Cook County Department of Corrections, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Harvey Grossman, Roger Baldwin Foundation of the ACLU, Chicago, Ill., for plaintiffs.
Frank Parkerson, Asst. State's Atty., Daniel Cannon, Chicago, Ill., for defendants.
This is a civil rights class action, on behalf of the class of correctional officers and supervisors at the Cook County Department of Corrections ("DOC"), challenging the constitutionality of a compulsory urine testing program. The program compels all correctional employees, on pain of termination, to submit urine specimens for the purpose of drug testing. An employee must submit a urine sample in the absence of a reasonable suspicion that the employee is illegally using drugs. The named plaintiffs, Yvonne L. Taylor, Charles Edwards, and Jean S. Jackson, are currently employed as correctional officers with the Department of Corrections. Also named as a plaintiff is Frankie McNeal, a correctional sergeant and supervisor. Defendant James O'Grady is the Sheriff of Cook County. Within his office the Illinois General Assembly has established the Cook County Department of Corrections. Ill. Rev.Stat. ch. 125, ¶ 202. Among the Sheriff's express powers is the appointment of the Executive Director of the Department of Corrections to act as the chief executive. Id. ¶ 212. The current Executive Director, Spencer Leak (replacing former Executive Director Philip Hardiman), is also a defendant in this suit. Acting pursuant to their responsibilities, defendants have ratified and implemented General Order 9.8A, the subject of this lawsuit.
The complaint seeks certification of the class of correctional employees and supervisors at the Department of Corrections ("DOC"). In a previous order, I certified the class to include all correctional employees and supervisors at the DOC, except for the defendants and those employees of the DOC who testified for the defendants. The complaint also seeks a declaration that the annual, compulsory urine testing of correctional employees authorized by General Order 9.8A are unconstitutional searches and seizures in violation of the fourth amendment. Further, the complaint seeks a declaration that the follow-up compulsory tests (for those who test positive initially) be declared violative of the fourth amendment. Relatedly, the complaint seeks a declaration that the continued employment of correctional employees may not be conditioned on their willingness to consent to mandatory urine testing. Finally, the complaint requests that defendants be permanently enjoined from implementing and enforcing the urine testing program described by General Order 9.8A and from conditioning plaintiffs' continued employment with DOC upon their willingness to consent to compulsory urine testing.1
Under the current standards for evaluating fourth amendment challenges to state action, to be discussed below, numerous factual questions must be resolved. See National Federation of Federal Employees v. Weinberger, 818 F.2d 935, 942 (D.C. Cir.1987) (). Accordingly, I held a full trial on the merits over several days. Having heard testimony from several expert and non-expert witnesses on the scope of and need for the program of compulsory urinalysis of all employees, I now make my findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52(a). For the reasons stated below, I grant the plaintiffs' request for declaratory and injunctive relief and accordingly enjoin defendants from implementing and enforcing the urine testing program described by General Order 9.8A.
The urine testing program at the DOC is described in General Order 9.8A, the stipulation of facts entered into evidence, and in part of the testimony of Robert E. Glotz. It may be summarized as follows. Once annually every correctional employee, no matter of what rank, will be compelled to submit a urine specimen for chemical urinalysis. The correctional officer to be tested will not be advised of the pendency of the test until roll call on the day on which the specimen is to be submitted. There are two situations in which an officer may be compelled to submit a urine specimen more than once annually. First, if the officer has already submitted a urine specimen which tested positive, and the officer has elected to enter a drug counseling and treatment program, the officer will be tested twice monthly for a period of six months. Second, if, in the view of a correctional superintendent or higher officer, there is a reasonable and articulable suspicion that an officer is using drugs illegally, is in possession of illegal drugs, or is bringing drugs into the institution, he or she will be tested.
The actual procedure for eliciting urine from the employees and chemically analyzing the urine samples is as follows. The employee is notified at roll call at the beginning of her or his shift that the test is to take place. The employee is then taken to the holding area for urinating and is required to wait there until able to urinate. The employee has the balance of the shift to provide her or his urine specimen.
Once the employee indicates that she or he is able to urinate, the employee is then requested, but not required, to specify medical information relating to the employee's substance use. The purpose of this inquiry is informational. In the event that there is a positive test result, the employee will not appear to have recently fabricated a defense to a prospective charge of drug use. The parties have indicated plans to enter a consent decree on the provision of medical information, so the legality of this particular procedure is no longer at issue.
After the employee has provided the medical information, or indicated that she or he declines to provide it, the employee will be taken to the appropriate washroom. Prior to the entry of the employee into the washroom, the investigator administering the test will inspect the washroom to assure that there are not articles present which could impair the test. After doing so, the investigator will then conduct a "pat down" search of the employee for the same purpose. (The standard "pat down" search consists of the visual observation of the person searched and lightly patting or running the hands over the body extremities and torso to assure that there are no objects present which may be used to corrupt the specimen.)
The correctional officer urinates in a cup provided for that purpose. The procedure is observed generally by the assigned investigator from a "discreet" distance. The actual physical observation of the flow of urine from the body into the cup is not required or recommended, unless the investigator is possessed of facts which indicate that the person giving the sample is going to attempt to impugn the veracity of the test by switching samples, substituting water for urine, or the like. Under ordinary circumstances, therefore, women can be in a stall with the door closed, and men at a urinal with their back to the investigator.
After the urine specimen has been obtained, it is placed in two containers and sealed. One container is opened and tested at the Department of Corrections utilizing the DAU/EMIT urinalysis test. If the EMIT test shows a positive result for the presence of marijuana, cocaine, heroin, or opiates (the only drugs being tested for), the opened sample is resealed and, together with the unopened sample, is sent to the Met-Path Laboratories for a confirmation examination utilizing the Gas Chrometography-Mass Spectroscopy Method ("GCMS"). In the event that the results of the EMIT test are confirmed, the employee will be informed of her or his option to have a second GCMS test performed upon the given urine sample by a reputable laboratory. If this test fails to confirm the positive test results already obtained, no action will be taken against the employee. If the employee has tested positive on the initial EMIT/GCMS tests and fails to have a second confirmatory test done, or if the second confirmatory test is positive, the employee has the option of entering a drug treatment program. If the employee chooses not to do so, the Sheriff will file a complaint with the Cook County Police and Corrections Merit Board seeking termination of the employee.
If the employee chooses to enter the drug treatment program, she or he will be compelled to submit two urine samples per month for six months to assure that the employee is not continuing to ingest drugs. Positive test results during the treatment program, or positive test results at a later date after completion of the program, will result in the Sheriff seeking the termination of the employee before the Cook County Police and Corrections Merit Board.
At any time, the failure to provide a urine sample when directed to do so is grounds for termination. Additionally, an employee who does not or is not able to provide the required sample within the allotted time will be presumed to have refused to give same and the Sheriff will then file a complaint with the Cook County Police and Corrections Merit Board seeking the employee's termination.
The defendants advanced three interests which they believe will be promoted through this program of urine testing: (1) the interest in preventing correctional officers...
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