Court Rejects ‘Passive Inhalation’ Argument

Duane Bennett was a Chicago Police sergeant and served on the Department for 22 years until his termination. During his employment, Bennett provided a urine sample for at least a dozen random drug tests. On July 10, 2012, Bennett provided a urine sample for another random drug test; the sample tested positive for 50 nanograms per milliliter of multiple marijuana metabolites on a screening test and 33 ng/ml of tetrahydrocannabinol – marijuana’s active ingredient – on a confirmation test. Apart from that random drug test, none of Bennett’s prior specimen samples tested positive for drugs. On July 16, 2012, Bennett (not at the Department’s direction) provided a different specimen sample for a second drug test, which produced a negative test result for narcotics. On August 21, 2012, again not at the Department’s direction, Bennett provided a sample for a hair follicle test, which tested negative for marijuana and all drugs tested.

During an internal Department investigation, Bennett explained that his positive drug test for marijuana resulted from the following four environmental exposures: (1) investigating the odor of marijuana smoke emanating from his son’s bedroom on the morning of the drug test; (2) attending an outdoor concert on June 27, 2012, where individuals were smoking marijuana in close proximity to him; (3) participating in a narcotics investigation within a week of the test where he stood in a room filled with a strong smell of marijuana smoke; and (4) working for two to three weeks in close proximity to a narcotics locker emitting a strong odor of marijuana.

The City terminated Bennett for illegal drug use. He challenged his termination in the Illinois Court of Appeals.

The Court upheld the City’s discharge decision. The Court found that the City could rely on the testimony of an expert witness that: (1) one of the asserted environmental exposures occurred too far in advance of the drug test (the outdoor concert nearly two weeks before the test); (2) the asserted environmental exposures were not sufficiently strong enough to account for the amount of marijuana metabolites tested in Bennett’s urine (the exposures in his son’s room and the room in the tire shop both involving an odor of marijuana, but no reported smoke present); (3) the unburned marijuana stored in the narcotics locker did not emit THC; and (4) the negative hair test result only revealed that Bennett did not regularly use marijuana during the test period.

The Court also rejected Bennett’s argument that the City erroneously failed to afford sufficient weight to Bennett’s mitigation evidence, including his years of service, exemplary service record and the testimony of his character witnesses. The Court held that “although other random drug tests produced negative test results for illegal substances and Bennett’s service had otherwise been exemplary, the fact still remains that his most recent random drug test was positive for an illegal substance. The City determined that the positive drug test resulting from his illegal possession of marijuana violated multiple Department rules. The Department’s officers must uphold the law and departmental rules while providing for the safety and well-being of the community.”

Bennett v. McCarthy, 2015 IL App (1st) 143291-U (Ill. App. 2015).