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Sixth Circuit Affirms Dismissal of Complaint Filed Against KM&M Client Which Included Claims of Age Discrimination, Retaliation, Promissory Estoppel, and Breach of Contract

January 18, 2008

On January 18, 2008, the United States Court of Appeals for the Sixth Circuit affirmed the decision of the United States District Court for the Southern District of Ohio granting KM&M’s motion for summary judgment and dismissing a former employee’s claims of breach of contract, promissory estoppel, age discrimination and retaliation. Plaintiff, a chemical plant technician, was discharged after he failed a drug test by submitting a urine sample that was determined to be “inconsistent with human urine.” He was 47 years old when he was discharged, and had worked for the employer and its predecessor since 1972.

In May 2000, plaintiff took a drug test and tested positive for cocaine. He underwent drug treatment and returned to work under a written agreement that required him to undergo random substance abuse testing for a period of 48 months. In December 2002, the employer directed plaintiff to report to its nurse’s office for a random drug test. He submitted a urine sample that was split into two samples, which were determined by two independent, third-party testing labs to be “not consistent with human urine.” Shortly thereafter, the employer terminated plaintiff’s employment, and he filed suit.

At the conclusion of discovery, we moved for summary judgment on the employer’s behalf. Plaintiff argued in opposition to the motion that even if his sample was inconsistent with human urine, this did not equate to a “failed” drug test. Plaintiff also argued that the fact that he was replaced temporarily by someone younger created an inference of age discrimination. Plaintiff further alleged that the employer had treated similarly-situated younger employees better by allowing younger employees whose drug test results were inconclusive to retake the test.

The district court rejected all of plaintiff’s contentions, finding that he had failed to establish a prima facie case of age discrimination and noting in particular that he was replaced by an older employee (notwithstanding his temporary replacement by a younger employee), and had likewise not met his prima facie burden with respect to his retaliation claim because there was no causal connection between his alleged safety complaints and union organizing activities and his subsequent discharge. The court went on to find that plaintiff had failed to rebut the employer’s legitimate non-discriminatory reason for terminating his employment, or to raise any issue of material fact. The court also dismissed plaintiff’s claims of promissory estoppel and breach of contract, which were based respectively on promises allegedly made to plaintiff when he was hired and on the employer’s internal dispute resolution policy.

On appeal to the Sixth Circuit, plaintiff reiterated the arguments he made previously to the district court and also argued that the court had erroneously failed to consider the untimely and undated declarations he submitted in opposition to the employer’s motion for summary judgment, and which we had moved to strike. Following briefing and oral argument, the Sixth Circuit affirmed the district court’s decision in its entirety. The Circuit Court first agreed with the employer that the district court had not abused its discretion in refusing to consider plaintiff’s declarations, despite the fact that a number of district courts across the country have declined to strike undated declarations. The Circuit Court went on to conclude that in any event, the district court had appropriately granted summary judgment in favor of KM&M’s client.