Frye v. Ibp, Inc.

• Decision Date: 19 May 1998
• Docket Number: Civil Action No. 97-2447-KHV.
• Citation: 15 F.Supp.2d 1032
• Parties: Phillip W. FRYE, Plaintiff, v. IBP, INC., Defendant.
• Court: U.S. District Court — District of Kansas

15 F.Supp.2d 1032

Phillip W. FRYE, Plaintiff, v. IBP, INC., Defendant.

Civil Action No. 97-2447-KHV.

United States District Court, D. Kansas.

May 19, 1998.

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David W. Hauber, Boddington & Brown, Chtd., Kansas City, KS, for Phillip W. Frye.

Patricia A. Konopka, Kathy Perkins Brooks, Stinson, Mag & Fizzell, P.C., Kansas City, MO, for IBP Inc.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff Phillip W. Frye brings this action against his former employer, IBP, Inc., which terminated his employment on September 9, 1996. Plaintiff sues IBP for invasion of privacy, breach of implied contract, and retaliatory discharge. This matter comes before the Court on Plaintiff's Motion For Partial Summary Judgment (Doc. # 44) filed February 25, 1998, and Defendant's Motion For Summary Judgment (Doc. # 46) filed March 25, 1998. Plaintiff seeks partial summary judgment on his claim that IBP breached an implied contract of employment. IBP claims that it is entitled to summary judgment on all theories of relief. For reasons which follow, the Court finds that plaintiff's motion should be overruled and that IBP's motion should be sustained.

Factual Summary

The following material facts are undisputed, or where disputed, viewed in the light most favorable to the party opposing the motion for summary judgment.¹

IBP, Inc., operates a beef processing facility in Emporia, Kansas, where plaintiff began work on August 16, 1982. On April 8, 1996, IBP promoted plaintiff to lead mechanic on the third shift (10:00 p.m. until 6:30 a.m.). As lead mechanic, plaintiff reported to two slaughter maintenance supervisors who shared responsibility for third shift operations. One of the supervisors was Robert Brown; Carl Cannon held the other position until early 1996, when Ed Rohling assumed it. Mike Fiehler was IBP's Emporia Complex Manager.

At all relevant times, IBP posted a Drug/Alcohol Policy at the Emporia Plant. It provided in relevant part as follows:

It has always been the objective of IBP to make every effort to provide a safe, clean and wholesome place to work. Each employee, regardless of his/her position in the Company, must accept responsibility to help us achieve this goal. When employees have the presence of illegal drugs or alcohol in their system, they become a safety hazard to themselves and their fellow employees....

Section III—Drug/Alcohol Screening

The Company reserves the right to safeguard employees and property by administering an Alcohol/Controlled Substance Screen to any employee:

1. During their hiring process....

2. Whenever there is reasonable suspicion that the employee's ability to function safely may be affected by alcohol or drugs.

3. Involved in a workplace accident which requires a physician's visit.

Failure to submit to a screen or altering a screen in any way will result in disciplinary action up to and including discharge.

According to Fiehler, IBP conducted drug testing only pursuant to this policy. IBP expected employees to comply with the policy, and employees expected IBP to comply with it.

In April of 1996, IBP employees Robert Judd and Paul White contacted Steve Rumbo, a plant security officer. They told Rumbo that White had seen plaintiff and Brown smoking something and, at the same time, smelled marijuana. They also told Rumbo that White had discovered marijuana in the engine room and lift station. Judd reported that while he had not seen plaintiff and Brown smoking, he had observed them in the same area as the marijuana odor at least five times.

Security officers told Fiehler that they had received information that Brown and "the lead man on third shift" (plaintiff) were smoking marijuana on the job. They undertook surveillance in an effort to observe the reported drug use, but they saw nothing.

During late spring/early summer of 1996, Cannon was Brown's counterpart as slaughter maintenance supervisor. At about that time, Jeremy Cooper, a maintenance employee, told Cannon that Brown, plaintiff, and James Bowers (another maintenance employee) had told him that if he did not smoke marijuana with them, they did not want him on the shift.² Cannon had never seen Brown, plaintiff or Bowers in an impaired condition, nor had he questioned their ability to function safely in their jobs. He nonetheless relayed Cooper's information to his own supervisor, Mike McReynolds. Cannon also showed McReynolds some marijuana stems he had found at the lift station. McReynolds in turn relayed the information to Fiehler.

Some time later, Cannon told McReynolds he had heard a rumor that Cooper himself had brought marijuana to work.

One or two weeks after his conversation with Cooper, Cannon told Fiehler that marijuana smoking was definitely going on, because Bowers had admitted smoking marijuana with Brown and plaintiff. In early September, 1996, Cannon learned that plaintiff was planning to bring marijuana back from his vacation. Cannon therefore told Fiehler that if he wanted to catch Brown and plaintiff, this was the time to check them. Fiehler knew nothing about the source of Cannon's information, beyond the fact that Cannon had received the information from another employee. Cannon later told Bowers that he (Cannon) would have to reveal the source of the information which he had given Fiehler. In response, Bowers recanted his story, denying that he ever said anything about drugs.

On September 4, 1996, Fiehler met with Rodger Brownrigg, Plant Personnel Manager, and Gerald Huddleston, Plant Engineer. Fiehler expressed concerns that the highest-ranking supervisor on third shift (Brown) and his assistant (plaintiff) were smoking marijuana at work. He also noted that IBP depended on them to run the plant safely. They therefore decided to test Brown and plaintiff for drugs before the end of their shift on September 5, 1996.³

At approximately 6:00 a.m. on September 5, 1996, Huddleston and Brownrigg summoned Brown and plaintiff to the Slaughter Personnel Office. Huddleston told them that he had information that employees were smoking marijuana on shift and that they were implicated. He asked Brown and plaintiff to submit to a urine test, and both agreed.⁴ At the time, neither plaintiff nor Brown appeared impaired or glassy-eyed, or had slurred speech. In fact, to Huddleston's knowledge, plaintiff and Brown functioned safely as employees; he had never noticed either to be glassy-eyed or to have slurred speech.

In response to Huddleston's request, plaintiff asked if he could put away his tools, take a shower, and change his clothes before giving the sample. Huddleston and Brownrigg agreed. Brown went directly to the dispensary, where he gave a urine sample at about 6:30 a.m. Huddleston told Brown that IBP suspected he and plaintiff were smoking marijuana and if it was true, he needed to let the company know. According to Huddleston Brown stated he was not going to lie and admitted that he had smoked marijuana.⁵ Huddleston asked Brown if plaintiff had ever smoked marijuana. Brown replied that he had no comment. Huddleston gave Brown the option of resignation or termination, and Brown resigned.

Plaintiff reported to the dispensary at about 6:45 a.m., and provided a urine sample in the privacy of a restroom. After the test, Huddleston told plaintiff that IBP suspected him of smoking marijuana with Brown and asked if it was true. Plaintiff denied that he smoked marijuana at work and — because his shift was over — left the plant. Plaintiff retained an attorney, probably later that day.

On September 6, 1996, Ray Smith, a third shift maintenance mechanic, told his supervisor that on the morning of September 5, Bowers had asked him to urinate in a bag. Bowers told Smith that if he did not comply, someone was going to be fired. When Smith asked who he was talking about, Bower replied "Phil and Deadeye."⁶ Smith told his supervisor that he had provided the urine sample and that during his shift on the evening of September 5, plaintiff had thanked him — stating "I knew I couldn't pass that test."⁷ Smith's supervisor immediately notified Fiehler, who relayed the information to Brownrigg. IBP management believed that Smith was telling the truth.⁸ Brownrigg asked the plant nurse whether there had been anything peculiar about plaintiff's test, and she indicated that the urine sample was "towards the lower part of the [temperature] level."

Based primarily on Smith's report, IBP decided to test plaintiff again. At the end of his shift on September 9, 1996, plaintiff's shift supervisor took him to meet Brownrigg. Brownrigg told plaintiff that he wanted to conduct another test. Plaintiff delayed his decision for a considerable period of time, drinking several glasses of water and asking to consult with his attorney. Brownrigg did not want to let plaintiff out of his sight, given the report that he had provided a false sample in the first test. Brownrigg therefore allowed plaintiff to make a telephone call but would not let him leave the plant to meet with counsel. Brownrigg told plaintiff that he would terminate his employment if plaintiff refused to submit to the drug test.⁹ Eventually plaintiff refused to do so and Brownrigg fired him. According to Brownrigg, IBP does not fire probationary or regular employees without some just cause basis.

Plaintiff admits that IBP asked him to provide a urine sample on September 9, 1996, and that he said he would do so only if IBP allowed him to leave to consult with his attorney and if his attorney instructed him to do so. Plaintiff also admits that he understood IBP would terminate his employment if he left without providing a sample. After he fired plaintiff, Brownrigg met separately with Smith and Bowers. Smith confirmed his earlier story that he had provided plaintiff's counterfeit sample. Bowers continued to deny any involvement, but Brownrigg believed that Bowers was lying and that Smith was telling the truth.

Plaint...