Summary
In Bellinger v. Weight Watchers Gourmet Food Co., 142 Ohio App.3d 708, 756 N.E.2d 1251, 1257 (2001), the court addressed what duty an employers owes when the employer, rather than a third party, collects employees' urine samples.
Summary of this case from BACA v. FISHER SAND GRAVEL, CO.Opinion
Case No. 2000CA00345.
DATE OF JUDGMENT ENTRY: May 7, 2001.
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 1998CV02455.
For Plaintiff-Appellant, ALLEN G. CARTER, SR. P.O. Box 80651 Canton, OH 44702.
For Defendants-Appellees, TOD T. MORROW MARK D. FRASURE RHONDA L. WARREN 4518 Fulton Drive, N.W. P.O. Box 35548 Canton, OH 44735.
JUDGES: Hon. Julie A. Edwards, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.
OPINION
On July 22, 1985, appellant, Kenneth Bellinger, began working for appellee, Weight Watchers Gourmet Food Company. On December 5, 1996, appellant cut his finger at work. As a result of the incident, appellant was told to produce a urine sample pursuant to appellee's Drug and Alcohol Policy. At first, appellant refused to submit a urine sample, but he eventually complied with the request on December 10, 1996. The test came back positive for marijuana. As a result, appellant signed a "Last Chance Agreement." Said agreement stated appellant could return to work but he would have to enroll in a drug and alcohol abuse treatment program. In addition, the agreement provided that appellant would be subject to random drug/alcohol screens for twelve months. The agreement called for appellant's termination in the event of a positive reading. On December 16, 1997, appellant was asked to submit a random drug/alcohol test. Appellant produced the sample and same was sent to appellee, The Center for Occupational Medicine MRO aka Occupational Medicine Association of Stark County, Inc., for testing. Testing was done under the supervision of appellee, Daniel N. Larusso, D.O. The test came back positive for marijuana. Appellee terminated appellant on January 12, 1998. On December 24, 1998, appellant filed a complaint against appellees and others claiming discrimination, invasion of privacy, wrongful discharge, fraud, misrepresentation and negligence. An amended complaint was filed on March 5, 1999. On March 22, 2000, appellee Weight Watchers filed a motion for summary judgment. Appellees Occupational Medicine and Dr. Larusso filed their motion for summary judgment on September 15, 2000. By judgment entry filed October 13, 2000, the trial court granted both motions. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I. THE TRIAL COURT ERRED WHEN IT ENTERED SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT'S DISCRIMINATION CLAIMS.
II. THE TRIAL COURT ERRED WHEN IT ENTERED SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT'S INVASION OF PRIVACY CLAIM.
III. THE TRIAL COURT ERRED WHEN IT ENTERED SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT'S WRONGFUL DISCHARGE CLAIM.
IV. THE TRIAL COURT ERRED WHEN IT ENTERED SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT'S FRAUD AND MISREPRESENTATION CLAIM.
V. THE TRIAL COURT ERRED WHEN IT ENTERED SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANT'S NEGLIGENCE CLAIMS.
VI. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF-APPELLANT'S MOTION FOR ENLARGEMENT OF TIME TO COMPLETE DISCOVERY AS WELL AS HIS MOTION TO REVISE ALL CASE MANAGEMENT DATES AND THE USE OF THE ALTERNATE TRIAL DATE.
I, II, III, IV, V
Appellant claims the trial court erred in granting summary judgment to appellees. We disagree. Summary judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448: Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35.
Appellant claims the trial court erred in granting summary judgment to appellees on his claims for discrimination, invasion of privacy, wrongful discharge, fraud and misrepresentation and negligence. We will examine each claim separately.
DISCRIMINATION
Appellant claims appellee Weight Watchers failed to apply their drug and alcohol policy in a nondiscriminatory manner. This discriminatory application of the policy was "a primary factor" in his termination. Appellant's Brief at 22. Appellant is a white male.
In McDonnell Douglas Corporation v. Green (1973), 411 U.S. 792, 802, the United States Supreme Court set forth an outline of the elements necessary to establish a prima facie case of discrimination, depending upon the facts of the case:
This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
"In reverse discrimination cases, the first element has been modified to require the plaintiff to show background circumstances supporting the inference that his employer was the unusual employer who discriminated against nonminority employees." Wagner v. Allied Steel Tractor Company (1995), 105 Ohio App.3d 611, 615, citing Notari v. Denver Water Dept. (C.A.10, 1992), 971 F.2d 585, 589.
Upon review, we find appellant failed to establish that appellee Weight Watchers was the "unusual employer" who discriminated against white males. In his own deposition, appellant conceded he was unaware of any statements or evidence to establish that he was discriminated against because of his race. Bellinger depo. at 194-195. Appellant presented no evidence that appellee Weight Watchers applied its drug and alcohol policy in a discriminatory manner. Other employees who tested positive were required to sign Last Chance Agreements. Mutigli aff. at ¶ 29. Several employees who violated the agreements were terminated, including a black male, two white males and one white female. Id. at Exhibit 9.
Assuming arguendo that appellant established a prima facie case of discrimination, the next inquiry is whether appellee Weight Watchers had a legitimate nondiscriminatory reason for terminating appellant. Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146. Appellee Weigh Watchers' employee handbook clearly provided that employees involved in an accident requiring medical attention will be tested for drugs and alcohol. Mutigli aff. at Exhibit 1, Section IV. Any employee that tests positive is subject to disciplinary action "up to and including discharge." Id. at Section VI. Appellant was injured while at work and received medical attention. He complied with the policy and submitted a urine sample which tested positive for marijuana. Appellant signed the Last Chance Agreement and again tested positive for marijuana. Appellant admitted to using marijuana. Bellinger depo. at 30-31, 100-101, 105, 109-111, 126. Appellant clearly violated company policy and was subject to disciplinary action which included termination.
The trial court did not err in granting summary judgment on appellant's discrimination claim.
INVASION OF PRIVACY
Appellant claims his privacy was "tortuously invaded" as appellee Weight Watchers caused his test results to be "released to individuals who had no legitimate basis to have knowledge of them." Appellant's Brief at 23. Appellant does not list the names of these "individuals."
During his deposition, appellant stated the company nurse, Rosie Blanc, communicated the results of his test to Joelene Mutigli, the company Human Resource Manager. Bellinger depo. at 89. These two individuals were in charge of administering the drug and alcohol testing program so obviously they would have a need to know. Mutigli aff. at ¶ 1, 4 and 10.
Appellant also claimed two co-workers, Leona Patton and Athena Manley, may have been told of the results. Bellinger depo. at 89. However, appellant did not present any evidence as to whether they were actually told or who allegedly told them. Id. at 90-93. Appellant's claim merely relied on the "rumor mill." Id. at 91. In addition, appellant himself "e-mailed" several individuals about the matter, including Steve Charles, Ms. Mutigli and Ms. Blanc. Bellinger depo. at 24-29, Defendant's Exhibit E.
Upon review, we agree with appellee Weight Watchers argument that appellant's claim for invasion of privacy is based upon "hearsay and speculation." The trial court did not err in granting summary judgment on appellant's invasion of privacy claim.
WRONGFUL DISCHARGE
Appellant claims he was wrongfully discharged based on the theories of implied contract and promissory estoppel.
In his employment application, appellant acknowledged that "such employment is not for any definite period but may be terminated by either party at any time." Bellinger depo. at 32, Defendant's Exhibit H. The Last Chance Agreement stated "Ken understands that no oral or written statement signed by him and/or any Company official or employee of Weight Watchers Gourmet Food Company is sufficient to constitute any agreement for employment for any specified period of time." Id. at 20, Defendant's Exhibit A. The acknowledgment to the employee handbook, which includes the drug and alcohol policy, states "I understand that this handbook is simply intended as an informational guide describing personnel policies, benefits and general information and that these guidelines are not to be construed as either a contract or guarantee of continued employment." Id. at Defendant's Exhibit B, Joint Exhibit M. This acknowledgment was signed by appellant. Id. at 20-21.
Based upon the foregoing, we find appellant's employment was as an employee-at-will and there was no express or implied contract to the contrary.
Appellant also claims the drug and alcohol policy contained specific promises of employment. Appellant claims he relied upon the provisions of the drug and alcohol policy to his detriment and appellee Weight Watchers failed to follow the drug and alcohol policy as it pertained to him and his co-workers. Appellant's Brief at 25. Appellant does not explain how appellee Weight Watchers failed to follow the drug and alcohol policy. The promissory estoppel exception to the employment-at-will doctrine applies only to specific promises regarding job security. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108. Appellant's complaints regarding the drug and alcohol policy relate to its administration. Any complaints are irrelevant given the fact that appellant admitted to smoking marijuana. Bellinger depo. at 30-31, 100-101, 105, 109-111, 126. Clearly appellee Weight Watchers had "just cause" to terminate appellant as outlined supra under "DISCRIMINATION."
Based upon the foregoing, we find the doctrine of promissory estoppel is not applicable sub judice.
The trial court did not err in granting summary judgment on appellant's wrongful discharge claim.
FRAUD AND MISREPRESENTATION
Appellant claims appellee Weight Watchers committed fraud by failing to disclose that a confirmatory test was not done on his December 10, 1996 test. Appellant claims he relied on this misrepresentation when he signed the Last Chance Agreement.
Appellant's test results were confirmed by gas chromatography mass spectrometry methodology. Mutigli aff. at Exhibits 2 and 5. Further confirmation would have been irrelevant given appellant's admission of marijuana usage. Bellinger depo. at 30-31, 100-101, 105, 109-111, 126. Appellant told Ms. Mutigli his test results would probably be positive. Mutigli aff. at ¶ 14.
Appellant claims that he was fraudulently induced to sign the Last Chance Agreement and then the agreement was used against him to discharge him. Appellee Weight Watchers did not need to use the Last Chance Agreement in order to discharge appellant as appellant was an employee-at-will.
The trial court did not err in granting summary judgment on appellant's fraud and misrepresentation claims.
NEGLIGENCE
Appellant claims appellees Weight Watchers, Dr. Larusso and Occupational Medicine breached their duty to perform the drug tests in a competent manner pursuant to the drug and alcohol policy and industry standards.
Appellee Weight Watchers owed no duty to appellant as to drug testing as appellant was an employee-at-will. Appellee Weight Watchers could have discharged appellant without even conducting drug tests. Further, appellant's arguments as to incompetent drug testing is irrelevant given his admissions of marijuana usage.
The trial court did not err in granting summary judgment on appellant's negligence claims.
Assignments of Error I, II, III, IV and V are denied.
VI
Appellant claims the trial court erred in not granting him additional time for discovery before ruling on appellees' motions for summary judgment. We disagree.
Appellant argues there was evidence revealed late in the discovery process that he wished to pursue. In particular, appellant wanted to retest his 1996 and 1997 urine samples for marijuana.
Appellant argues he did not know the samples were still available until the deposition of appellee Dr. Larusso taken on August 26, 2000. The existence of the samples was confirmed by appellee Dr. Larusso's attorney on September 1, 2000. On September 12, 2000, appellant requested additional time for discovery. Appellant wished to investigate the urine samples before the final pretrial.
In Mauzy, et al. v. Kelly Services, Inc. et al. (1996), 75 Ohio St.3d 578, 592, the Supreme Court of Ohio held the following:
`In discovery practices, the trial court has a discretionary power not a ministerial duty.' State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 57, 63 O.O.2d 88, 90, 295 N.E.2d 659, 661. Thus, the standard of review of a trial court's decision in a discovery matter is whether the court abused its discretion. See Heat Control, Inc. v. Hester Industries, Inc. (C.A.Fed. 1986), 785 F.2d 1017, 1022.
Such discretion, however, is not without limits. Although unusual, appellate courts will reverse a discovery order `when the trial court has erroneously denied or limited discovery.' 8 Wright, Miller Marcus, Federal Practice Procedure (2 Ed. 1994) 92, Section 2006. Thus, `[a]n appellate court will reverse the decision of a trial court that extinguishes a party's right to discovery if the trial court's decision is improvident and affects the discovering party's substantial rights.' Rossman v. Rossman (1975), 47 Ohio App.2d 103, 110, 1 O.O.3d 206, 210, 352 N.E.2d 149, 153-154. (Additional citations omitted.)
We assume the issue regarding the samples goes to the accuracy of the drug screening tests and whether subsequent tests might determine that the first tests, wherein positive results for marijuana were reported, were incorrect. Although this argument is salient as viewed in a vacuum, it is not persuasive sub judice.
On December 13, 1996, appellant filled out an intake assessment form for the IMPACT program and admitted to a fifteen year use of "pot" and using it "[o]nce a month, if that." Rice depo. at 17, 20-21. In particular, appellant admitted to using marijuana some two weeks prior to the accident at work and the 1996 test. Id. at 17, 21. Appellant also admitted to smoking marijuana prior to the accident at work and during the one year term of the Last Chance Agreement. Bellinger depo. at 98, 101, 109, Defendant's Exhibit F-1.
Appellant's own admissions mitigate against the relevancy of any retesting of the 1996 and 1997 urine samples.
Further, appellee Weight Watcher's motion for summary judgment was filed on March 22, 2000. On April 6, 2000, appellant asked for additional time for discovery and to respond to the motion. By judgment entry filed April 25, 2000, the trial court extended the discovery cut-off date to September 13, 2000, the date set for the final pretrial. On September 12, 2000, appellant requested additional time. Following the final pretrial, the trial court denied this request. See, Judgment Entry filed September 14, 2000.
We fail to find appellant was prejudiced by the trial court's denial to extend the time yet again. The matter, given the facts as set forth sub judice, was ripe for ruling.
Assignment of Error VI is denied.
The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.
__________ Farmer, J.
Edwards, P.J. and Hoffman, J. concur.