Fouty v. Ohio Dept. of Youth Servs.

• Decision Date: 13 June 2006
• Docket Number: No. 05AP-119.,05AP-119.
• Citation: 2006 Ohio 2957,167 Ohio App.3d 508,855 N.E.2d 909
• Parties: FOUTY, Appellee and Cross-Appellant, v. OHIO DEPARTMENT OF YOUTH SERVICES et al., Appellants and Cross-Appellees.
• Court: Ohio Court of Appeals

855 N.E.2d 909

167 Ohio App.3d 508

2006-Ohio-2957

FOUTY, Appellee and Cross-Appellant, v. OHIO DEPARTMENT OF YOUTH SERVICES et al., Appellants and Cross-Appellees.

No. 05AP-119.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided June 13, 2006.

Martin, Browne, Hull & Harper, P.L.L., and Lauren M. Ross, Springfield, for appellee.

Jim Petro, Attorney General, and Randall W. Knutti, Assistant Attorney General, for appellants.

PETREE, Judge.

{¶ 1} Defendant-appellant, the state of Ohio, acting through its Department of Youth Services ("DYS") and its Department of Health ("ODH"), appeals from a judgment of the Ohio Court of Claims awarding damages of $374,000 to plaintiff-appellee, Clifton J. Fouty. Plaintiff has filed a cross-appeal, asserting that the trial court erred in denying his request for prejudgment interest.

{¶ 2} In the mid-1980s, plaintiff was hired as a corrections officer in the Ohio Department of Rehabilitation and Correction ("ODRC"). Over the next several years, he was promoted several times within ODRC, eventually achieving the rank of captain. He transferred to DYS in January 2000. On November 1, 2000, he became deputy superintendent of the Circleville Juvenile Correctional Facility. As a deputy superintendent, plaintiff was a member of the unclassified civil service; as such, he was an "at-will" employee.

{¶ 3} On April 2, 2001, plaintiff was notified by DYS labor-relations officer Mary Tipton that he was to submit to a random drug test in accordance with DYS's Drug-Free Workplace Policy. Plaintiff appeared at the designated testing facility and, pursuant to the lab technician's instructions, produced a urine specimen. The specimen was rejected as being above the required temperature range. At the technician's directive, plaintiff produced a second specimen. This sample was rejected as being below the required temperature range. Having been at the testing facility for some time, plaintiff explained that he needed to return to his workplace. The technician told plaintiff that he would report to DYS that the tests were out of range. Plaintiff then left the testing facility and returned to work. Unbeknownst to plaintiff, however, his act of leaving the testing facility was considered a "refusal" to consent to the procedure. Indeed, the lab technician's report indicated that plaintiff "still had time * * * but refused to give another specimen." Consequently, plaintiff's test was deemed positive.

{¶ 4} Two days later, on April 4, 2001, plaintiff received a "Notice of Pre-Disciplinary Hearing Positive Drug and/or Alcohol Test." The notice indicated that plaintiff had tested positive for drugs in violation of DYS Directive B-19, Rule # 18c, "Violation of the Drug-Free Workplace Policy." The predisciplinary hearing was scheduled for April 6, 2001, and was to be conducted by DYS labor-relations officer Bradley Rahr. The hearing began informally, with Rahr permitting plaintiff to explain what had transpired at the testing facility. To that end, plaintiff explained that he did not expressly "refuse" to submit a third specimen; he also voiced his frustration at being charged with a positive test result based upon an unjustified allegation that he had refused to submit to the test.

{¶ 5} Rahr ultimately offered plaintiff the opportunity to enter into a Last Chance Agreement with DYS. That agreement refers to, and incorporates, an ODH Employee Assistance Program ("EAP") Participation Agreement. Rahr told plaintiff that he would recommend that plaintiff's employment be terminated unless he signed both agreements. Faced with the prospect of losing his job, plaintiff acquiesced and executed both agreements on April 11, 2001. Thereafter, Rahr put plaintiff in touch with Debbie Shutt, an intake coordinator for EAP, who would act as plaintiff's case monitor. Shutt advised plaintiff that she would schedule an appointment with clinical psychologist Dr. Charles Gerlach.

{¶ 6} Plaintiff met with Dr. Gerlach for an initial assessment on April 18, 2001. Dr. Gerlach determined that plaintiff did not have a drug problem and opined that the circumstances surrounding the drug tests were probably a "screw-up." Dr. Gerlach then questioned plaintiff about his alcohol consumption. Plaintiff reported that he typically drank two to five beers after work in the evening and occasionally consumed mixed drinks when socializing with friends on the weekend. He further reported that the longest period he had gone without alcohol was 11 days during the 1993 prison siege in Lucasville. He admitted that he had experienced the "shakes" during that time, but attributed his condition to the stress of the situation, not to alcohol withdrawal as suggested by Dr. Gerlach. Plaintiff also reported that his father was an alcoholic.

{¶ 7} Following this discussion, Dr. Gerlach recommended that plaintiff receive intensive outpatient treatment for alcoholism. Plaintiff objected to the treatment recommendation, arguing that he had not been tested for alcohol abuse and did not realize that his alcohol use was at issue. Shutt told plaintiff that he had to follow through with the treatment recommendation in order to comply with the EAP Participation Agreement.

{¶ 8} Aware that Dr. Gerlach did not offer an alcohol treatment program, Shutt, the next day, referred plaintiff to the Pickaway Area Recovery Service ("PARS") for treatment. DYS placed plaintiff on administrative leave pending the results of a return-to-duty drug test. Plaintiff returned to work with no restrictions after the return-to-duty drug test produced negative results.

{¶ 9} On April 25, 2001, Shutt was notified that plaintiff had not yet contacted PARS. After Shutt discussed the matter with plaintiff, he promptly scheduled an appointment with PARS. When he notified Shutt of the appointment, he again expressed his frustration with the situation and indicated that he was considering taking legal action.

{¶ 10} On May 23, 2001, plaintiff met with Greg Adams, a substance-abuse counselor at PARS. Adams conducted an independent assessment and concluded that plaintiff did not have a drug or alcohol problem and did not need any further treatment. Plaintiff immediately relayed the information to Shutt. Shutt responded that she would contact plaintiff by telephone after she reviewed information sent to her from PARS. Based upon his favorable PARS assessment and his successful completion of other program requirements, plaintiff assumed the matter was resolved.

{¶ 11} Following receipt of the PARS assessment, Shutt contacted Adams to discuss the apparent conflict between his and Dr. Gerlach's assessments. Adams declined Shutt's suggestion that he consult with Dr. Gerlach or anyone else involved in the case and reiterated his position that further treatment was unnecessary.

{¶ 12} Thereafter, Shutt discussed the matter with her supervisor, EAP Clinical Director Ken Kirksey. The two ultimately determined that plaintiff should return to Dr. Gerlach for a second assessment. Concerned about plaintiff's threats of legal action, Kirksey recommended that Shutt communicate the decision to plaintiff in writing.

{¶ 13} Acting on Kirksey's recommendation, Shutt did not telephone plaintiff as she had promised; rather, on May 30, 2001, she mailed a certified letter to plaintiff. The letter, dated May 29, 2001, notes that the PARS assessment directly conflicted with Dr. Gerlach's assessment and further states:

I would remind you that part of your responsibility for maintaining compliance with the Participation Agreement is following through with treatment recommendations made at the time of the assessment. Your options at this point are to contact Dr. Gerlach to schedule another appointment to reassess his recommendations or to have your case closed with EAP. If you do schedule another appointment with Dr. Gerlach and he concurs with your second assessment that treatment is not indicated at this time, we will consider you to be in compliance with your Participation Agreement. If he still believes that treatment is indicated, you will need to follow through with his recommendations in order to maintain compliance.

If you have any questions, please do not hesitate to call me or request to speak to our Clinical Director, Ken Kirksey. I hope to hear from you by [June 4, 2001] so we can discuss your decision. * * *

{¶ 14} Sometime after the letter was sent, plaintiff noticed a certified mail slip in his mailbox, indicating that he had received a letter from EAP. He did not retrieve the letter, however, because the post office was inconveniently located and he assumed that the letter was a certificate indicating that he had completed the EAP process. The letter was eventually returned to Shutt as unclaimed.

{¶15} Shutt sent a second certified letter, dated June 29, 2001, which was identical to the first except that it stated that she hoped to hear from plaintiff by July 9, 2001. The second letter was returned unclaimed on July 17, 2001.

{¶ 16} On July 24, 2001, Shutt notified Rahr that she had received no response to the two certified letters and was ready to close the case as noncompliant. Rahr requested that she send plaintiff a third certified letter; he also suggested that she send the letter via regular mail.

{¶ 17} On July 27, 2001, Shutt sent a third certified letter identical to the first two, except that it stated that she hoped to hear from plaintiff by August 3, 2001. She added, "If we have not heard from you by that time, your case with EAP will be closed as non-compliant." This letter was also sent to plaintiff via regular mail.

{¶ 18} Plaintiff's wife signed for the third certified letter on July 30, 2001; she received the regular mail letter the same day. She did not tell plaintiff about the letters; instead, she put them in the drawer she routinely placed bills in for plaintiff to pay on Saturday mornings after paydays. Plaintiff discovered both letters on...