In 1972, Randy Counts began his employment with Shell at its Belpre, Ohio, plant. Counts was laid off within a month of starting work but was rehired in 1974. Counts states that upon returning to Shell in 1974, he was promised by three individuals during the interview process that his term of employment would continue for life or until he accrued retirement benefits. In 2000, Kraton Polymers LLC purchased the assets of Shell and offered jobs to all Shell employees, including Counts. As part of the employment relationship, Kraton agreed to provide all employees in the Belpre plant with a three-step procedure for resolving disagreements and disputes. The Dispute Resolution Procedure was intended to provide “all employees of the Belpre Plant with a means of obtaining a definitive response to questions, complaints, misunderstandings, or disagreements involving personnel policies and procedures and create a forum for the employee to resolve a dispute.” On October 30, 2000, Kraton provided Counts with a written “Offer of Employment” stating in part:
“I wish to welcome you to Kraton Polymers under the terms set out in this letter. . . . Although we hope you choose to have a long career with Kraton Polymers, any employment relationship by law is one that requires the mutual consent of both employee and employer. This offer is not to be, and may not be considered, a contract of employment for a specific period of duration. Employment is “at will” and either the company or the employee may terminate the employment relationship at any time.”
Counts signed the Offer of Employment, thereby agreeing to its terms.
Counts worked in safety and environmentally sensitive positions. Therefore, he was required to undergo random substance abuse testing. In May 2000, prior to Kraton’s takeover, Counts underwent a drug test and tested positive for cocaine, which he admitted having used. He was instructed by Shell to contact one of its drug counselors. The counselor informed Counts that in order to continue his employment, he had to satisfy certain conditions. Counts signed a return to work agreement on May 24, 2000, which required him to submit to periodic substance abuse testing for 48 months following his return to work. The agreement provided that “[t]he results of these tests must be negative,” and that termination could result from a failed test. On December 6, 2002, Counts’s direct supervisor told him to report to the plant nurse’s office for a substance abuse test. Counts reported there, went into the office’s private bathroom, and thereafter handed the nurse a purported urine sample, which she split into separate sealed containers for submission to an independent, third-party drug testing lab. Approximately one week later the lab, Quest Diagnostics, reported that Counts’s sample was “Substituted.” Pursuant to Kraton’s drug testing policy, the still-sealed second sample container was sent to another independent drug analysis company, LabOne, which also found that Counts’s sample was “Substituted” and was “[n]ot consistent with normal human urine.” When confronted, Counts denied having tampered with the sample. He was sent home from work, and later his employment was officially terminated. Kraton’s Substance Abuse Policy stated that “[t]ermination of employment will normally occur” after “[a] second positive test following a prior Company initiated positive test where employment has been continued.” Did Kraton violate its (or Shell’s) contractual obligations to Counts?
