[Cite as Kellhofer v. Columbus S. Power, 2013-Ohio-4226.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ROSS COUNTY

LEE KELLHOFER,                                              :
                                                            :
        Plaintiff-Appellant,                                :
                                                            :        Case No. 13CA3361
        vs.                                                 :
                                                            :        DECISION AND
COLUMBUS SOUTHERN                                           :        JUDGMENT ENTRY
POWER, ET AL,                                               :
                                                            :
        Defendants-Appellees.                               :        RELEASED 09/25/2013


                                           APPEARANCES:

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.



Hoover, J.


        {¶ 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
Ross App. No. 13CA3361                                                                           2


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
Ross App. No. 13CA3361                                                                                           3


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

positions1 – 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.




1
 DOT covered positions are those requiring a Commercial Driver’s License.
2
 CSP and the union had been in negotiations since June 2003, but were unable to agree on a new collective
bargaining agreement until September 12, 2003. Therefore, from July 15, 2003 through September 12, 2003, there
was no collective bargaining agreement in place between CSP and IBEW.
Ross App. No. 13CA3361                                                                               4


       {¶ 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.
Ross App. No. 13CA3361                                                                                 5


       {¶ 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 negative in order for him to regain employment. That same day,

SAP Frazier consented to Kellhofer’s taking of a return-to-work drug test.


       {¶ 12} On August 21, 2003, Kellhofer took a return-to-work drug test. He was informed

by MRO Hall on August 27 that his return-to-work drug test was positive for marijuana. That

same day, Kellhofer took a second self-paid test, which tested negative. Kelhoffer reported the

negative test result to CSP. On August 29, Kelhoffer took a third self-paid test. The third self-

paid test, a DOT chain of custody test, was also negative. Kellhofer again informed CSP of the

negative test.


       {¶ 13} On September 4, 2003, CSP terminated Kellhofer as a result of the positive

return-to-work drug test. A new collective bargaining agreement became effective on September

12.


       {¶ 14} After the termination, and at the insistence of Kellhofer, EAP case manager

Mayse submitted a letter noting a possible explanation for the conflicting test results.

Specifically, Mayse explained that the positive return-to-work drug test could have been due to a

“spike” in Kellhofer’s metabolism – i.e. his body’s fat cells could have stored enough THC to

test positive on the return-to-work drug test despite no further drug use by Kellhofer. The letter

concluded that further testing of creatine levels could help explain whether the positive test was
Ross App. No. 13CA3361                                                                                                 6


due to recent drug use or past use. Kellhofer also procured a letter of support from SAP Frazier,

in which Frazier concluded that the return-to-work drug test should be treated as a “false

positive” in light of the negative self-paid tests.


         {¶ 15} Kellhofer also filed a grievance regarding his termination through his union; but

the grievance was denied by CSP. Furthermore, because there was no collective bargaining

agreement in effect at the time of Kellhofer’s termination, Kellhofer’s union informed him that it

could not arbitrate his grievance.


         {¶ 16} Kellhofer originally filed suit in the United States District Court for the Southern

District of Ohio pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. §

185, alleging breach of contract and breach of duty of fair representation claims against CSP and

his union, IBEW Local 1466. The district court dismissed those claims on the grounds that it

lacked subject matter jurisdiction; and Kellhofer appealed. The United States Court of Appeals

for the Sixth Circuit affirmed the trial court’s judgment, holding that “ * * * there was no

collective bargaining provision requiring arbitration of grievances in effect when Kellhofer failed

the two drug tests and when [CSP] discharged him.”


         {¶ 17} In 2008, Kellhofer filed a complaint in the Ross County Court of Common Pleas,

bearing Case No. 08CI000998 and alleging state law breach of contract and promissory estoppel

claims against CSP and breach of contract claims against Magellan. After significant discovery

and motion practice, Kellhofer voluntarily dismissed that case without prejudice in March 2010.

Kellhofer3 then re-filed the same claims, against the same defendants,4 in March 2011.




3
 Kellhofer’s wife, Sandra K. Kellhofer, was also named as a plaintiff, but it was agreed among the parties and trial
counsel that the claims belonged solely to Kellhofer.
Ross App. No. 13CA3361                                                                                         7


        {¶ 18} CSP filed a motion for summary judgment on all the claims asserted against it.

After the motion was fully briefed by the parties, the trial court issued a decision granting CSP

summary judgment. The trial court determined that while issues of fact existed as to whether an

express or implied contract had been entered into by the parties to return Kellhofer to work

following successful completion of the EAP and a negative return-to-work drug test and that

issues of fact existed as to whether a similar promise was made and detrimentally relied upon by

Kellhofer; it was undisputed that Kellhofer had breached the terms of any purported contract or

promise by testing positive for drugs a second time. Thus, the trial court concluded that even if it

were to assume that an implied contract existed or that a promise had been made, Kellhofer

“violated the terms of the implied contract by testing positive on his back-to-work drug test” and

Kellhofer “failed to meet the conditions of the promise requiring him to pass a back-to-work

drug test administered by his employer.” A journal entry was subsequently entered by the trial

court granting judgment to CSP.


        {¶ 19} Both of Kellhofer’s assignments of error challenge the trial court’s ruling on

CSP’s motion for summary judgment. We review the trial court’s decision on a motion for

summary judgment de novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d

954, ¶ 12. Accordingly, we afford no deference to the trial court’s decision and independently

review the record and the inferences that can be drawn from it to determine whether summary

judgment is appropriate. Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No.

11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-

Ohio-3126, ¶ 16.


4
  Magellan filed a motion for summary judgment arguing that its intervening bankruptcy action discharged the
claims against it. Magellan’s motion for summary judgment was granted, and the claims against Magellan are not at
issue in this appeal.
Ross App. No. 13CA3361                                                                                  8


        {¶ 20} Summary judgment is appropriate only when the following have been

established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is

entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one

conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); DIRECTV,

Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion

for summary judgment, the court must construe the record and all inferences therefrom in the

nonmoving party’s favor. Civ.R. 56(C). The party moving for summary judgment bears the

initial burden to demonstrate that no genuine issues of material fact exist and that they are

entitled to judgment in their favor as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293,

662 N.E.2d 264 (1996). Once that burden is met, the nonmoving party then has a reciprocal

burden to set forth specific facts to show that there is a genuine issue for trial. Id.


        {¶ 21} Furthermore, in order to succeed on a breach of contract claim, the plaintiff must

demonstrate that: (1) a contract existed; (2) the plaintiff fulfilled his obligations; (3) the

defendant breached his obligations; and (4) damages resulted from this breach. Chaney v.

Ramsey, 4th Dist. Pike No. 98CA614, 1999 WL 217656, *5 (Apr. 7, 1999), citing Doner v.

Snapp, 98 Ohio App.3d 597, 600, 649 N.E.2d 42 (2nd Dist.1994).


        {¶ 22} For his first assignment of error, Kellhofer contends that an implied contract of

continued employment was created between himself and CSP, the terms being that if he

complied with the provisions of the Drug Testing Program and requirements of the EAP he

would return to work. Specifically, Kellhofer argues that “[t]he written notice of suspension, the

terms of the Drug Testing Program and accompanying oral statements of Beckelhimer constitute

an offer of a return to work agreement on the part of CSP which [he] accepted through his
Ross App. No. 13CA3361                                                                                9


performance in entering into and complying with the terms of the EAP and the CSP Drug

Testing Program.” [Brief at 15.]


         {¶ 23} Furthermore, Kellhofer alleges that CSP breached the implied contract by

negligently administering the EAP. Kellhofer alleges that the Drug Testing Program required the

EAP plan administrator to set a prescribed time frame in which he had to pass the return-to-work

drug test, and that the EAP failed in this regard.


         {¶ 24} Alternatively, Kellhofer contends that there is an issue of material fact regarding

the interpretation of the alleged implied contract that precludes summary judgment. Kellhofer

acknowledges that he needed to test negative before returning to work. He also acknowledges

that he understood that once he returned to work, a subsequent positive test would result in his

termination. He disputes, however, that he was only entitled to one opportunity to pass his

return-to-work drug test. Instead, Kellhofer contends that the Drug Testing Program, the terms

of his suspension letter, and the oral representations of the CSP agents all contemplated multiple

attempts at the return-to-work drug test, so long as he tested negative within a prescribed time

frame.


         {¶ 25} CSP, on the other hand, contends first and foremost that the parties did not enter

into an implied contract for continued employment. Alternatively, CSP argues that if such an

agreement was created, Kellhofer failed to perform the conditions of the agreement by testing

positive on his return-to-work drug test; and thus, they are entitled to judgment as a matter of

law.


         {¶ 26} Because we find that CSP would be entitled to judgment even if an implied

contract of continued employment had been entered into by the parties, we decline to address the
Ross App. No. 13CA3361                                                                              10


issue regarding the existence of said contract. Rather, assuming that an implied contract existed,

it is clear that Kellhofer did not fulfill his obligations under the agreement. Accordingly, his

breach of contract claim fails as a matter of law.

       {¶ 27} Kelhoffer contends that the Drug Testing Program, the suspension letter, and the

oral representations of Beckelhimer control the terms of the purported agreement. The Drug

Testing Program clearly states, however, that a second positive test by an employee will result in

termination. Similarly, the suspension letter clearly and unambiguously states that a future

positive test would result in termination. Moreover, Kellhofer was aware from his conversations

with Beckelhimer that he needed to test negative before returning to work.


       {¶ 28} As noted above, in order to succeed on a breach of contract claim the plaintiff

must fulfill his obligations under the contract. Here, the terms of the contract, if one in fact

existed, clearly required that Kellhofer, having already failed a random test, refrain from testing

positive on any subsequent drug test. Because Kellhofer did test positive on a subsequent drug

test, he cannot succeed as a matter of law on his breach of contract claim against CSP.


       {¶ 29} We also find Kellhofer’s interpretation argument unpersuasive. In interpreting a

contract, “the primary and paramount objective is to ascertain the intent of the parties so as to

give effect to that intent.” Heskett Ins. Agency, Inc. v. Braunlin, 4th Dist. Ross No. 11CA3234,

2011-Ohio-6100, ¶ 13, citing Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d

51, 53, 544 N.E.2d 920 (1989). “Common words must be given their ordinary meaning unless

manifest absurdity would result or some other meaning is clearly evidenced from the face or

overall contents of the written instrument.” Id.
Ross App. No. 13CA3361                                                                           11


       {¶ 30} “Where a contract is clear and unambiguous, its interpretation is a matter of law,

and summary judgment is appropriate.” Lewis v. Mathes, 161 Ohio App.3d 1, 2005-Ohio-1975,

829 N.E.2d 318, ¶ 19 (4th Dist.), citing Inland Refuse Transfer Co. v. Browning-Ferris

Industries of Ohio, Inc., 15 Ohio St.3d 321, 322, 474 N.E.2d 271 (1984). “Contractual terms are

ambiguous if the meaning of the terms cannot be deciphered from reading the entire contract or

if the terms are reasonably susceptible of more than one interpretation.” Id., citing United States

Fid. & Guar. Co. v. St. Elizabeth Med. Ctr., 129 Ohio App.3d 45, 55, 716 N.E.2d 1201 (2nd

Dist.1998). “When ambiguity exists, the interpretation of the parties’ intent constitutes a

question of fact.” Id.


       {¶ 31} At issue is the language of the Drug Testing Program, Section X, which states as

follows:


                                               Section X

                                      Positive Drug Test Results

       A.      A first time random positive drug test will result in a suspension

               without pay and:


               1.        a referral will be made to the Employee Assistance

                         Program (EAP). The employee will be required to

                         follow through on any recommendations made by the

                         EAP and test negative before returning to work. Failure

                         in this regard and/or failure to test negative within a time

                         frame prescribed by the EAP will result in the

                         employee’s discharge.
Ross App. No. 13CA3361                                                                          12


               2.      after returning to work, the employee will be subject to

                       follow-up/monitoring testing based on the

                       recommendation of the EAP. There is a minimum

                       requirement of at least 6 tests in the first 12 months after

                       return. * * *


       C.      An employee who refuses to be tested, otherwise fails to cooperate in

               the administration of a test, or who tests positive a second time will be

               discharged.


Also at issue is the language of the suspension letter, which states:

       On July 17, 2003, you tested positive for marijuana, which is in violation of

       AEP’s Alcohol/Drug Policy. Effective July 22, 2003, you are suspended without

       pay until it is determined by the Medical Review Officer (MRO) and your

       Employee Assistance Program (EAP) counselor that you can return to work.


       After returning to work, you will be subject to follow-up testing, in addition to

       any applicable random alcohol or drug-testing program.


       In the future, if you fail to follow through on any recommendation 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.


       {¶ 32} Contrary to Kellhofer’s assertions, the above language does not contemplate that

an employee may take as many return-to-work drug tests as is necessary to produce a negative

result within a prescribed time period. While the parties could have anticipated such a situation,

they did not do so. Furthermore, the language of the so-called implied contract of continued
Ross App. No. 13CA3361                                                                            13


employment is not ambiguous simply because the policies and suspension letter do not set forth

that Kellhofer had only “one-shot” at his return-to-work drug test. Rather, we believe that the

above quoted language is clear and unambiguous; that reasonable minds could only conclude

that once an employee fails a random drug test, any subsequent failure, albeit a return-to-work

drug test or otherwise, subjects the employee to termination.


       {¶ 33} Accordingly, we find that Kellhofer’s first assignment of error is without merit.


       {¶ 34} In his second assignment of error, Kellhofer contends that the trial court erred in

granting summary judgment in favor of CSP on his claim of promissory estoppel. Specifically,

Kellhofer asserts that CSP’s actions and the terms of the Drug Testing Program constituted a

promise in which he reasonably believed that if he participated in the EAP and provided a

negative return-to-work drug test, he could resume employment with the company.


       {¶ 35} “ ‘The test in such cases is whether the employer should have reasonably

expected its representation to be relied upon by its employee and, if so, whether the expected

action or forbearance actually resulted and was detrimental to the employee.’ ” Keaton v. Pike

Community Hosp., 4th Dist. Pike No. 96CA579, 1997 WL 33965, *5 (Jan. 27, 1997), quoting

Kelly v. Georgia-Pacific Corp., 46 Ohio St.3d 134, 545 N.E.2d 1244 (1989), paragraph three of

the syllabus; see also Cassidy v. U.S. Health Corp., 4th Dist. Scioto No. 2158, 1994 WL 88942,

*9 (Mar. 18, 1994) (“When determining whether the doctrine of promissory estoppel should be

applied, the trial court must determine whether the employer made representations and

reasonably expected the employee to rely on those representations, and whether the employee

relied on those representations and consequently suffered detrimental reliance.”). The doctrine

of promissory estoppel is somewhat limited in the employment context, however, in that a
Ross App. No. 13CA3361                                                                            14


promise of future benefits or opportunities without a specific promise of continued employment

does not support a promissory estoppel claim. Cassidy at *9, citing Wing v. Anchor Media, Ltd.

of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991), paragraph two of the syllabus.


       {¶ 36} In the case sub judice, even if we were to assume that a “specific promise of

continued employment” was made by CSP, Kellhofer’s promissory estoppel claim fails for the

same reason that his implied contract claim fails. Kellhofer failed to fulfill the conditions of any

promise of continued employment by testing positive on his return-to-work drug test; and

therefore, he cannot sustain an action for breach of contract or promissory estoppel against CSP.

Accordingly, Kellhofer’s second assignment of error is without merit.


       {¶ 37} Based on the foregoing, we conclude that no issues of fact exist pertaining to any

breach of contract or promissory estoppel. Therefore, CSP is entitled to judgment as a matter of

law. The judgment of the Ross County Court of Common Pleas is affirmed.


                                                                        JUDGMENT AFFIRMED.
Ross App. No. 13CA3361                                                                          15


                                       JUDGMENT ENTRY


         It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion.

                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
