Counts v. Kraton Polymers, U.S. LLC, 011808 FED6, 06-4531

Docket Nº:06-4531
Party Name:RANDY COUNTS, Plaintiff-Appellant, v. KRATON POLYMERS, U.S. LLC, Defendant-Appellant.
Case Date:January 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

RANDY COUNTS, Plaintiff-Appellant,


KRATON POLYMERS, U.S. LLC, Defendant-Appellant.

No. 06-4531

United States Court of Appeals, Sixth Circuit

January 18, 2008




BEFORE: COLE and COOK, Circuit Judges; MILLS, District Judge.[*]

RICHARD MILLS, District Judge.

Plaintiff Randy Counts appeals the district court's entry of summary judgment in favor of Defendant Kraton Polymers, U.S. LLC. Finding no error, we affirm.


In 1972, Plaintiff-Appellant Randy Counts began his employment with Defendant-Appellee Kraton's predecessor, Shell, at its Belpre, Ohio plant. Counts was laid off within a month of starting work but was rehired in 1974. Counts states that upon returning to Shell in 1974, he was promised by three individuals during the interview process that his term of employment would continue for life or until he accrued retirement benefits. During the course of his 29 years of employment prior to his December 2002 discharge, Counts was called upon to perform several different job functions at the plant. Moreover, Counts stated that throughout his employment, his technical performance was always considered to be high.

In 2000, Kraton purchased the assets of Shell and offered jobs to all Shell employees, including Counts. As part of the employment relationship, Kraton agreed to provide all employees in the Belpre plant with a three-step procedure for resolving disagreements and disputes. The Dispute Resolution Procedure ("DRP") was intended to provide "all employees of the Belpre Plant with a means of obtaining a definitive response to questions, complaints, misunderstandings, or disagreements involving personnel policies and procedures and create a forum for the employee to resolve a dispute."

On October 30, 2000, Kraton provided Counts with a written "Offer of Employment" stating in part:

I wish to welcome you to KRATON Polymers under the terms set out in this letter. . . . Although we hope you choose to have a long career with KRATON Polymers, any employment relationship by law is one that requires the mutual consent of both employee and employer. This offer is not to be, and may not be considered, a contract of employment for a specific period of duration. Employment is "at will" and either the company or the employee may terminate the employment relationship at any time.

Counts signed the Offer of Employment, thereby agreeing to its terms. Counts never asked any questions about that document's contents or had any discussions with Kraton management about it. At the time of his discharge, Counts was a senior technician in the effluent division, responsible for monitoring the process whereby the plant's wastewater is treated and cleaned before being released into the Ohio River.

Kraton employees such as Counts who worked in safety and environmentally sensitive positions are required to undergo random substance abuse testing. In May 2000, Counts underwent a drug test pursuant to that policy. Counts tested positive for cocaine, which he admitted having used, and was instructed by Shell to contact one of its drug counselors. The counselor informed Counts that in order to continue his employment, he had to satisfy certain conditions. Counts signed a return to work agreement on May 24, 2000, which required him to submit to periodic substance abuse testing for 48 months following his return to work. The agreement provided that "[t]he results of these tests must be negative," and that termination could result from a failed test.

On December 6, 2002, Counts's direct supervisor, Gary Bennett, told him to report to plant nurse Deena Deem's office for a substance abuse test. Counts reported to Nurse Deem's office, went into the office's private bathroom, and thereafter handed Nurse Deem a purported urine sample, which she split into separate sealed containers for submission to an independent, third-party drug testing lab. Approximately one week later the lab, Quest Diagnostics, reported that Counts's sample was "Substituted." Pursuant to Kraton's drug testing policy, the still-sealed second sample container was sent to another independent drug analysis company, Lab One, which also found that Counts's sample was "Substituted" and was "[n]ot consistent with normal human urine."

Approximately one week later, Gary Bennett and Human Resources Manager Wendell Mulford informed Counts of the test results and asked him whether he had any information that might explain the results. Counts said that he had not done anything to the sample. Counts was told that he would not be allowed to work that night and that he should wait to hear from Kraton before reporting to work again. Mulford and Bennett asked Counts to call them if he could provide any additional information to explain the results. He never called.

Counts emphasizes that he never tested positive for the presence of drugs after the first positive test in May 2000. According to Section (D)(3)(e) of Kraton's Substance Abuse Policy, "Termination of employment will normally occur" after "[a] second positive test following a prior Company initiated positive test where employment has been continued." According to Counts, the requirement of "a second positive test" was the sole operative term in the Policy describing the circumstances for terminating an employee who had previously tested positive.

On December 26, 2002, Counts was informed that his employment was terminated due to the result of his December 6 substance abuse test. According to Kraton, Counts was replaced by Danny Gandee who was 54 years old at the time. Counts asserts that although he eventually was replaced by Gandee, he was succeeded for several months by Michael Isner, who was 42 years old.

Counts filed this action, alleging that his termination was (1) based on his age (48), in violation of Ohio Rev. Code §§ 4112.4 and 4112.99; (2) retaliatory within the meaning of Ohio Rev. Code § 4112.02; (3) a breach of contract; and (4) improper under the doctrine of promissory estoppel.

On April 28, 2006, Kraton moved for summary judgment as to each of Counts's claims. On June 6, Counts filed his brief in opposition to the motion; two days later, he filed an unsworn and undated declaration. On June 12, 2006, Kraton moved to strike Counts's declaration; Counts then filed a second declaration. Counts subsequently moved to strike Kraton's reply brief, which Kraton had labeled a memorandum of law in further support of its motion for summary judgment. Alternatively, Counts requested leave to file a supplemental memorandum in opposition to the summary judgment motion. Counts filed a "rebuttal declaration" and a sur-reply, or "supplemental memorandum," the following day, without having received the previously requested leave of court.

The district court struck Counts's undated declarations, concluding that "it is not permissible to present an undated declaration that lacks a discernible signing date as summary judgment evidence." The court also observed that the declarations were not timely, as Kraton had argued in its motion. In denying Counts's motion to strike Kraton's memorandum in further support of its summary judgment motion, the district court concluded that the title of a brief is not material, that the alleged "new arguments" contained in Kraton's reply brief directly addressed arguments made by Counts in his brief in opposition, and that Kraton had the right to submit Mulford's affidavit to address arguments Counts raised in opposition. The district court also struck Counts's unauthorized sur-reply.

The district court then granted Kraton's motion for summary judgment. The court determined that Counts's age discrimination claim failed because his replacement is older than he is, and the only other Kraton employees who failed second drug tests were also discharged, and because he failed to establish that Kraton's legitimate, non-discriminatory reason for his discharge (his second failed drug test) was pretextual. The district court also concluded that Kraton was entitled to summary judgment on Counts's retaliation claim because he did not establish a causal connection between his purported protected activities and his termination, nor did he establish that Kraton's articulated non-retaliatory reason for his discharge was pretextual. The court also granted summary judgment to Kraton on Counts's breach of contract claim, finding that the DRP did not create any "applicable or invoked contract rights." Finally, the district court dismissed Counts's promissory estoppel claim, finding that the alleged oral promises of lifetime employment many years prior to his discharge were "of such general and vague nature that they can hardly be said to be clear and unambiguous promises upon which Counts could reasonably rely."

Counts raises several issues on appeal, which we address in turn.


A. Standard of Review

We review the district court's grant of summary judgment de novo. Briggs v. Potter, 463 F.3d 507, 511 (6th Cir. 2006). The entry of summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "We must view all facts and inferences drawn therefrom in the light most favorable to the nonmoving party." Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998) (citation omitted). Evidentiary issues such as a district court's refusal to consider an affidavit are reviewed for abuse of discretion. Briggs, 463 F.3d at 511. "A district court abuses its discretion when it relies on erroneous findings of fact, applies the wrong legal standard, misapplies the...

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