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Kellhofer v. Columbus Southern Power

Court of Appeals of Ohio, Fourth District

September 25, 2013

LEE KELLHOFER, Plaintiff-Appellant,
v.
COLUMBUS SOUTHERN POWER, ET AL, Defendants-Appellees.

James T. Boulger, Chillicothe, Ohio, for Appellant.

Frank G. Wobst and Jamie A. LaPlante, Porter, Wright, Morris & Arthur LLP, and David A. Laing, Of Counsel, American Electric Power Service Corporation, Columbus, Ohio, for Appellees.

DECISION AND JUDGMENT ENTRY

Marie Hoover, Judge

(¶ 1} Plaintiff-appellant, Lee Kellhofer, appeals from the judgment of the Ross County Common Pleas Court that granted the motion for summary judgment of defendant-appellee, Columbus Southern Power ("CSP"), as to Kellhofer's claims for breach of contract and promissory estoppel. Kellhofer contends that pursuant to the terms of an implied contract, CSP, his former employer, could not terminate him after he tested positive for marijuana on a random drug test and again on his official return-to-work drug test. Alternatively, Kellhofer contends that the company breached its promise of continued employment. Because we find that Kellhofer failed to fulfill his obligations under the alleged implied contract or promise of continued employment by testing positive for marijuana on his return-to-work drug test, we overrule his assignments of error and affirm the judgment of the trial court.

(¶ 2} Kellhofer raises two assignments of error for review. First Assignment of Error:

THE TRIAL COURT ERRED IN GRANTING THE EMPLOYER'S MOTION FOR SUMMARY JUDGMENT WHEN THE EVIDENCE BEFORE THE COURT ESTABLISHED GENIUNE ISSUES OF MATERIAL FACT, WITH RESPECT TO THE EXISTENCE OF AN IMPLIED CONTRACT AND THE REASONABLE INTERPRETATION OF THE TERMS OF THE CONTRACT.

Second Assignment of Error:

THE TRIAL COURT ERRED IN GRANTING THE EMPLOYER'S MOTION FOR SUMMARY JUDGMENT ON THE CLAIM OF PROMISSORY ESTOPPEL WHEN GENIUNE ISSUES OF MATERIAL FACT EXISTED THAT COULD SUPPORT THE APPLICATION OF THE DOCTRINE AND A FINDING OF BREACH OF THE PROMISE ON THE PART OF THE EMPLOYER.

(¶ 3} Kellhofer is a former employee of CSP, a subsidiary of American Electric Power Company, Inc. (AEP). CSP hired Kellhofer in 1984, and he last worked at CSP as a Station Servicer at the Chillicothe Substation. The position of Station Servicer was within the collective bargaining unit represented by the International Brotherhood of Electrical Workers (IBEW) and was the highest-level bargaining unit position at the Chillicothe Substation. As part of his responsibilities as Station Servicer, Kellhofer inspected high voltage equipment at power stations and substations; performed maintenance on that equipment; performed emergency power restoration during power outages; and worked on energized equipment and transmission lines. Given the possibility of power-related emergencies, Kellhofer was required to be on-call 24 hours per day. To facilitate his on-call work, CSP issued Kellhofer a pager and a company vehicle.

(¶ 4} As a CSP employee, Kellhofer was also subject to AEP's Drug Testing Program. The Drug Testing Program subjects employees in Department of Transportation (DOT) covered positions[1] – including the Station Servicer position – to random drug testing. Employees are selected for random testing based on a computerized random selection program. The Drug Testing Program requires that employees testing positive in a random drug test be suspended without pay and referred to the Employee Assistance Program (EAP). The Drug Testing Program further requires the employee to follow through on any recommendations made by the EAP and to test negative before returning to work. Notably, the Drug Testing Program states that: "An employee * * * who tests positive a second time will be discharged."

(¶ 5} On July 14, 2003, the collective bargaining agreement between CSP and Kellhofer's union, IBEW Local 1466, expired.[2]

(¶ 6} On the morning of July 17, 2003, Kellhofer's supervisor, David Spradlin, informed him that he was selected for random testing. That afternoon, Kellhofer reported for the random drug test.

(¶ 7} A few days later, Kellhofer was notified by the Medical Review Officer (MRO), Dr. David Hall, that he tested positive for marijuana. That same day, Kellhofer informed CSP's Human Resources Representative, Jamie Beckelhimer, that he had tested positive on his random drug test. According to Kellhofer's affidavit filed in the trial court, Beckelhimer informed him that he would be suspended without pay and gave him the telephone number for CSP's EAP plan administrator, Magellan Health Services, Inc. ("Magellan"). Beckelhimer also purportedly told Kellhofer during this initial conversation that in order to regain employment he would need to test negative and that he would have to do whatever the EAP administrator told him to do.

(¶ 8} The next day, July 22, 2003, Beckelhimer and Spradlin hand delivered to Kellhofer a suspension letter. The suspension letter stated, inter alia: "In the future, if you fail to follow through on any recommendations from the EAP, test positive for alcohol or drugs, or refuse to submit to a Company requested drug or alcohol test, your employment will be terminated."

(¶ 9} Kellhofer was then referred to Kevin Mayse, Magellan's EAP case manager. Mayse informed Kellhofer that he would refer him to a substance abuse professional (SAP) who would evaluate him, decide his treatment, and make a recommendation for re-employment. At Kellhofer's request, Mayse referred Kellhofer to a SAP near his home, Robert Frazier of Scioto Paint Valley Mental Health Center in Circleville, Ohio.

(¶ 10} On July 31, 2003, SAP Frazier conducted his initial assessment of Kellhofer. SAP Frazier determined that Kellhofer needed 4 to 6 out-patient counseling sessions and decided that he could conduct the counseling sessions himself since no other certified substance abuse counselors were reasonably located within Kellhofer's commuting area.

(¶ 11} After three sessions with SAP Frazier - the initial assessment on July 31, 2003, and follow-up sessions on August 14 and August 19 – Kellhofer had a self-paid drug test performed on August 19. On August 20, Kellhofer learned that he had tested negative on the self-paid test and he informed Beckelhimer, Spradlin, Mayse, and SAP Frazier of the result. At that time, Kellhofer also indicated that he was ready to take his official return-to-work drug test, which he understood had to be ...


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