NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                     File Name: 08a0064n.06
                     Filed: January 18, 2008

                                   No. 06-4531

                  UNITED STATES COURT OF APPEALS
                       FOR THE SIXTH CIRCUIT


RANDY COUNTS,                               )
                                            )   ON APPEAL FROM THE
            Plaintiff-Appellant,            )   UNITED STATES DISTRICT
                                            )   COURT FOR THE SOUTHERN
v.                                          )   DISTRICT OF OHIO
                                            )
KRATON POLYMERS, U.S. LLC,                  )   OPINION
                                            )
            Defendant-Appellant.            )


BEFORE: COLE and COOK, Circuit Judges; MILLS, District Judge.*

      RICHARD MILLS, District Judge. Plaintiff Randy Counts appeals the

district court’s entry of summary judgment in favor of Defendant Kraton Polymers,

U.S. LLC. Finding no error, we affirm.


                               I. BACKGROUND

      In 1972, Plaintiff-Appellant Randy Counts began his employment with

Defendant-Appellee Kraton’s predecessor, Shell, at its Belpre, Ohio plant. Counts


      *
       The Honorable Richard Mills, United States District Judge for the Central
District of Illinois, sitting by designation.
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. During the course of his 29 years of employment prior

to his December 2002 discharge, Counts was called upon to perform several different

job functions at the plant. Moreover, Counts stated that throughout his employment,

his technical performance was always considered to be high.

      In 2000, Kraton 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 (“DRP”) 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

                                          2
         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 never

asked any questions about that document’s contents or had any discussions with

Kraton management about it. At the time of his discharge, Counts was a senior

technician in the effluent division, responsible for monitoring the process whereby

the plant’s wastewater is treated and cleaned before being released into the Ohio

River.

         Kraton employees such as Counts who worked in safety and environmentally

sensitive positions are required to undergo random substance abuse testing. In May

2000, Counts underwent a drug test pursuant to that policy. Counts tested positive

for cocaine, which he admitted having used, and 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.

                                           3
      On December 6, 2002, Counts’s direct supervisor, Gary Bennett, told him to

report to plant nurse Deena Deem’s office for a substance abuse test. Counts reported

to Nurse Deem’s office, went into the office’s private bathroom, and thereafter

handed Nurse Deem 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.”

      Approximately one week later, Gary Bennett and Human Resources Manager

Wendell Mulford informed Counts of the test results and asked him whether he had

any information that might explain the results. Counts said that he had not done

anything to the sample. Counts was told that he would not be allowed to work that

night and that he should wait to hear from Kraton before reporting to work again.

Mulford and Bennett asked Counts to call them if he could provide any additional

information to explain the results. He never called.

      Counts emphasizes that he never tested positive for the presence of drugs after

the first positive test in May 2000. According to Section (D)(3)(e) of Kraton’s

                                         4
Substance Abuse Policy, “Termination of employment will normally occur” after “[a]

second positive test following a prior Company initiated positive test where

employment has been continued.” According to Counts, the requirement of “a second

positive test” was the sole operative term in the Policy describing the circumstances

for terminating an employee who had previously tested positive.

      On December 26, 2002, Counts was informed that his employment was

terminated due to the result of his December 6 substance abuse test. According to

Kraton, Counts was replaced by Danny Gandee who was 54 years old at the time.

Counts asserts that although he eventually was replaced by Gandee, he was succeeded

for several months by Michael Isner, who was 42 years old.

      Counts filed this action, alleging that his termination was (1) based on his age

(48), in violation of Ohio Rev. Code §§ 4112.4 and 4112.99; (2) retaliatory within the

meaning of Ohio Rev. Code § 4112.02; (3) a breach of contract; and (4) improper

under the doctrine of promissory estoppel.

      On April 28, 2006, Kraton moved for summary judgment as to each of

Counts’s claims. On June 6, Counts filed his brief in opposition to the motion; two

days later, he filed an unsworn and undated declaration. On June 12, 2006, Kraton

moved to strike Counts’s declaration; Counts then filed a second declaration. Counts

subsequently moved to strike Kraton’s reply brief, which Kraton had labeled a

                                          5
memorandum of law in further support of its motion for summary judgment.

Alternatively, Counts requested leave to file a supplemental memorandum in

opposition to the summary judgment motion. Counts filed a “rebuttal declaration”

and a sur-reply, or “supplemental memorandum,” the following day, without having

received the previously requested leave of court.

      The district court struck Counts’s undated declarations, concluding that “it is

not permissible to present an undated declaration that lacks a discernible signing date

as summary judgment evidence.” The court also observed that the declarations were

not timely, as Kraton had argued in its motion. In denying Counts’s motion to strike

Kraton’s memorandum in further support of its summary judgment motion, the

district court concluded that the title of a brief is not material, that the alleged “new

arguments” contained in Kraton’s reply brief directly addressed arguments made by

Counts in his brief in opposition, and that Kraton had the right to submit Mulford’s

affidavit to address arguments Counts raised in opposition. The district court also

struck Counts’s unauthorized sur-reply.

      The district court then granted Kraton’s motion for summary judgment. The

court determined that Counts’s age discrimination claim failed because his

replacement is older than he is, and the only other Kraton employees who failed

second drug tests were also discharged, and because he failed to establish that

                                           6
Kraton’s legitimate, non-discriminatory reason for his discharge (his second failed

drug test) was pretextual. The district court also concluded that Kraton was entitled

to summary judgment on Counts’s retaliation claim because he did not establish a

causal connection between his purported protected activities and his termination, nor

did he establish that Kraton’s articulated non-retaliatory reason for his discharge was

pretextual. The court also granted summary judgment to Kraton on Counts’s breach

of contract claim, finding that the DRP did not create any “applicable or invoked

contract rights.” Finally, the district court dismissed Counts’s promissory estoppel

claim, finding that the alleged oral promises of lifetime employment many years prior

to his discharge were “of such general and vague nature that they can hardly be said

to be clear and unambiguous promises upon which Counts could reasonably rely.”

      Counts raises several issues on appeal, which we address in turn.

                                  II. DISCUSSION

      A. Standard of Review

      We review the district court’s grant of summary judgment de novo. Briggs v.

Potter, 

, 511 (6th Cir. 2006). The entry of summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

                                           7
law.” Fed. R. Civ. P. 56(c). “We must view all facts and inferences drawn therefrom

in the light most favorable to the nonmoving party.” Ercegovich v. Goodyear Tire

& Rubber Co., 

, 349 (6th Cir. 1998) (citation omitted). Evidentiary

issues such as a district court’s refusal to consider an affidavit are reviewed for abuse

of discretion. 

. “A district court abuses its discretion when

it relies on erroneous findings of fact, applies the wrong legal standard, misapplies

the correct legal standard when reaching a conclusion, or makes a clear error of

judgment.” 

internal quotation marks omitted).

      B. Evidentiary issues

      Counts contends that the district court committed error in granting summary

judgment based on its belief that it was required to strike, sua sponte, each of his

three separate declarations as undated, “[p]ursuant to the binding precedent” of Bonds

v. Cox, 

, 702 (6th Cir. 1994). Because the June 8, 2006 declaration was

filed two days after the deadline for filing Counts’s opposition brief, Kraton moved

to strike the declarations as untimely. Kraton asserts that the district court’s decision

to strike Counts’s declarations comports with the law of this Circuit and with clear

statutory language. “Unsworn declarations are permitted to be used as evidence only

if ‘subscribed . . . as true under penalty of perjury, and dated.’” 

(quoting 28 U.S.C. § 1746) (emphasis in Bonds).

                                           8
       Counts alleges that eight years after Bonds, this Court re-addressed the “date”

requirement when it observed that “courts have held that the absence of a date on

such documents does not render them invalid if extrinsic evidence could demonstrate

the period when the document was signed.” Peters v. Lincoln Elec. Co., 

, 475-76 (6th Cir. 2002) (citation omitted). Counts asserts that in this case, the

approximate dates of signature for each of his declarations in the present case are

easily ascertainable.

       We conclude the district court did not abuse its discretion in striking the

declarations. As Kraton contends, this court in Peters did not overturn the decision

in Bonds. Moreover, the applicable statute requires that unsworn declarations be

dated. See 28 U.S.C. § 1746. Thus, striking the declarations was not an abuse of

discretion.1

       Counts contends that the district court also committed error in granting

summary judgment based on the “new” affidavit of Wendell Mulford and Kraton’s

“supplemental memorandum of law in further support” of its summary judgment


       1
         Counts points to a number of district court decisions which he contends reject the rigid
approach of the court below in favor of an approach consistent with this court’s reasoning in
Peters. Those cases relied on by Counts are examples of district courts exercising their
discretion. This court’s task is to determine whether the district court abused its discretion and,
as Kraton alleges, Counts has pointed to no case in which a court of appeals found that a district
court had abused its discretion by either considering or refusing to consider an undated
declaration.

                                                 9
motion (which more appropriately would be referred to as a “reply brief”), while

denying Counts an opportunity to respond.

       Counts contends that in granting summary judgment, the district court relied

upon several arguments and items of evidence raised for the first time in Kraton’s

reply brief. However, these arguments were raised in Kraton’s initial brief in support

of its summary judgment motion and in Counts’s memorandum in opposition. The

district court did not err in declining to strike the reply brief.

       The Mulford affidavit was attached to Kraton’s reply brief. In a footnote in his

appellate brief, Counts alleges that the Mulford affidavit failed to satisfy the

requirement of Federal Rule of Civil Procedure 56(e) that it demonstrate the affiant’s

competence to testify about the matter set forth in the affidavit. Counts did not object

to the affidavit before the district court and does not specifically allege why Mulford

is not competent to testify about the matters set forth in the affidavit. After reviewing

the affidavit, we conclude that based on Mulford’s status as human resources manager

of Kraton, he was competent to make the statements contained in his affidavit.2 We

also conclude the district court did not abuse its discretion in striking Counts’s sur-



       2
         Counts also complains that the district court did not strike the affirmation of Laura Sack,
which was filed in support of Kraton’s motion to strike, even though like Counts’s three
declarations, it did not bear a date. Counts does not say whether he moved to strike the
affirmation. There is nothing in the record indicating that he filed a motion to strike.

                                                10
reply.

         For the reasons that follow, we conclude that even if the district court erred

with respect to an evidentiary ruling, any error was harmless.

         C. Counts’s age discrimination claim under Ohio law

         The plaintiff has the initial burden of establishing a prima facie case of

discrimination under Ohio Rev. Code § 4112.14(A) by demonstrating each of the

following: (1) he was a member of a statutorily protected class; (2) he was

discharged; (3) he was qualified for his position; and (4) he was replaced by, or his

discharge permitted the retention of, a person of substantially younger age. Coryell

v. Bank One Trust Co. N.A., 101 Ohio St.3d. 175, 180, 

, 787 (2004).

If the plaintiff establishes his prima facie case, the employer may overcome the

presumption of discrimination by articulating a legitimate, non-discriminatory reason

for the employment action. Mauzy v. Kelly Services, Inc., 

, 582,

, 1276 (1996). The plaintiff must then show that the employer’s

articulated reason was a pretext for discrimination. 

court concluded that Counts failed to establish the fourth element

of his prima facie case.3 Counts contends that in rejecting his counter-evidence, the


         3
         Kraton also continues to assert Counts cannot meet the third element by demonstrating
that he was qualified for his position, based on his failure to obtain a satisfactory result on his
drug test. The district court rejected this argument on the basis of Cline v. Catholic Diocese of

                                                 11
district court “accepted at face value” Kraton’s assertion that “The only moderately

younger [Mr.] Isner, however, was a cross trained employee who[m] KRATON drew

from a pool of employees to perform Count[s]’s duties until Gandee was identified

as the replacement through KRATON’s bidding process.”

       Counts claims that a reasonable juror could have rejected Kraton’s claim and

found that Isner had, by himself, taken on the duties of Counts while shedding his

previous duties. Moreover, Counts alleges there are factual disputes regarding

whether Isner had been trained to fulfill his duties and that no one else was even

considered for such an assignment.4 Counts also contends, “A reasonable juror could

further find that Mr. Isner performed these duties indefinitely and was performing

these duties when official company policy decreed that a permanent replacement be

assigned.”5


Toledo, 

, 660-61 (6th Cir. 2000), wherein this Court determined that at the prima
facie stage of a discrimination case, “a court must examine plaintiff’s evidence independent of
the nondiscriminatory reason ‘produced’ by the defense as its reason for terminating plaintiff.”
       4
         Counts purports to support these assertions by citing to paragraphs 9 and 10 of the
Mulford affidavit. However, the Mulford affidavit does not support these statements.
Presumably, Counts is arguing that a juror could simply not believe the statements contained in
the affidavit. To get to that point, however, Counts must do more than simply deny the
allegations. See Fed. R. Civ. P. 56(c).
       5
         Counts relies on paragraph 12 of the Mulford affidavit for this assertion. Paragraph 12
reads, “KRATON posted Plaintiff’s position on January 1, 2003, six days following his discharge
on December 26, 2002. On January 15, 2003, less than three weeks after Plaintiff was
discharged, KRATON announced that Dan Gandee was the successful bidder and would assume
Plaintiff’s position. Mr. Gandee was 54 years of age on January 15, 2003.” It appears that

                                                12
       A temporary assumption of a departed employee’s duties does not constitute

replacement under Ohio law. “A person is ‘replaced’ only when another employee

is hired or reassigned to perform that person’s duties.”          Atkinson v. International

Technegroup, Inc., 

, 359, 

, 264 (Ohio 1st App.

Dist. 1995). “A person is not replaced when another employee is assigned to perform

the plaintiff’s duties in addition to other duties, or when the work is redistributed

among other existing employees already performing related work.” 

   Counts asserts that Isner’s sole duty was to replace him. Counts seems

to suggest, therefore, that because Isner was not performing any other duties, Isner

was in fact his replacement.

       Counts claims that a reasonable juror could also give significant weight to

Kraton’s rules requiring that a vacancy be filled within 30 days, a statement which

contains no citation to the record. Counts emphasizes that Isner remained in his

former position for 100 days after his termination. However, Counts does not dispute

that it was less than three weeks after his discharge that Kraton announced Gandee

would assume his position. Moreover, he does not dispute Kraton’s assertion that

Gandee did not start until April 6, 2003 because he had to remain in his former



Counts is emphasizing that Isner continued to perform Counts’s former duties for three months
after Gandee was announced as the new hire.

                                              13
position until his successor became qualified. The record demonstrates that Counts

was replaced by Gandee.

      Based on the foregoing, we conclude that the record shows Isner was

temporarily assigned to Counts’s job until Gandee was available to take over.

Accordingly, the district court correctly determined that Counts did not show he was

replaced by someone substantially younger. Counts is unable to establish a prima

facie case of age discrimination under Ohio law based on his termination.

      Counts next asserts that the record shows evidence of disparate treatment

wherein Kraton treated younger workers more favorably than older workers, thus

raising the inference of intentional discrimination. Specifically, he argues there was

age discrimination in the administration of drug tests, claiming that three younger

employees who were not similarly situated to Counts were allowed to retake drug

tests while he was not. Two of these individuals retook their drug tests because their

urine sample container seals were broken when received by the lab. The third

individual submitted a sample which did not contain enough urine for testing. Counts

contends that a reasonable juror could have concluded that the record is devoid of

evidence that Counts caused or contributed to the testing problems in the sample, and

that Kraton’s claim is based on speculation. Counts further asserts that he complied

with all test procedures and that when the sample left his custody and control, it

                                         14
appeared regular and entirely consistent with human urine.6

       The district court concluded that the three alleged comparators’ specimens

“could not be tested for reasons beyond their control,” which “stand in contrast to

Counts’s situation, and to accept them as analogous or fairly comparable would be

to permit Counts to survive summary judgment by embracing an absurd level of

abstraction under which every set of facts would apply.”

       The district court correctly determined that Counts was not similarly situated

to the younger employees who he claims were treated more favorably. Pursuant to

Kraton policy, no one observed Counts supplying his urine sample. Kraton relied on

the findings of two independent labs which found that Counts had submitted

something other than human urine. In disputing this, Counts essentially relies only

on his own assertion that when the sample left his custody, it appeared entirely

consistent with human urine. Kraton states, moreover, that besides Counts, only two

employees have failed to pass a second substance abuse test since the policy was

adopted in 1991. The employees were younger than Counts (45 and 47 years old),

and both were discharged. As the district court noted, “These individuals are closer

to Counts’ rather unique situation in that they also failed to pass second drug tests.”


       6
         Kraton notes that Counts testified at deposition that when he handed the sample to the
nurse she said something like, “[W]ell, this looks awfully clear. . . .you must have been drinking
a lot of water.”

                                                15
The district court correctly determined that Kraton was entitled to summary judgment

on Counts’s age discrimination claims under Ohio law.

      D. Counts’s retaliation claim under Ohio law

      Counts argued before the district court that Kraton discharged him in retaliation

for his participating in union-organizing activities, for filing safety reports, and for

complaining about the company’s safety standards. The Ohio statute under which

Counts asserts his retaliation claim provides:

      It shall be an unlawful discriminatory practice . . . [f]or any person to
      discriminate in any manner against any other person because that person
      has opposed any unlawful discriminatory practice defined in this section
      or because that person has made a charge, testified, assisted, or
      participated in any manner in any investigation, proceeding, or hearing
      under sections 4112.01 to 4112.07 of the Revised Code.

Ohio Rev. Code § 4112.02(I).

      To prove a prima facie case of retaliation, a plaintiff must demonstrate that “(1)

she engaged in a protected activity; (2) her employer knew about the protected

activity; (3) her employer took adverse employment action against the plaintiff; and

(4) there was a causal connection between the protected activity and the adverse

employment action.” Hollingsworth v. Time Warner Cable, 

,

553, 

, 987 (Ohio 1st App. Dist. 2004). The test under state law is

basically the same as under federal law. 

plaintiff establishes a prima facie


                                          16
case, then the burden shifts to the employer to ‘articulate some legitimate, non-

discriminatory reason’ for its actions.” 

812 N.E.2d at 987. If the

employer meets its burden, the plaintiff then must show that the articulated reason

was a pretext. 

812 N.E.2d at 987.

       The district court concluded that even assuming Counts engaged in protected

activity, he has failed to demonstrate the requisite causal connection between the

alleged protected activity and his termination. The court determined that because of

the attenuated length of time of six weeks to several months, Counts was unable to

establish a causal connection. On appeal, Counts asserts that “the record is replete

with facts from which a reasonable juror could reject Appellee’s proffered reason as

pretextual.”7 However, Counts provides no citations to the record. Counts makes

general statements wherein he alleges a reasonable juror could reject Kraton’s efforts

to justify its difference in treatment in re-administering the test to younger workers.

Moreover, he contends that a juror could find that Kraton relies on numerous

inconsistencies and contradictions. Counts also argues (without any citation to the

record) that Kraton made false representations regarding when Counts reported safety

and environmental violations and about whether his complaints were limited to union



       7
        Counts does not specifically address the district court’s finding that he failed to establish
his prima facie case because he could not show the requisite causal connection.

                                                 17
organizing activities.

      We conclude that the district court correctly determined Kraton was entitled

to summary judgment because Counts failed to show a causal connection between any

of his alleged protected activity and his termination.

      E. Breach of contract and promissory estoppel

      Counts alleges that Kraton’s DRP limited its right to terminate his employment

at will. The district court granted summary judgment to Kraton, finding that there

was no proper summary judgment evidence in the record supporting Counts’s

allegation that he had ever requested a review of his termination under the DRP or

that it applied to such terminations.

      Counts contends that at some point before his termination, he asked Gary

Bennett about the DRP and was told that it does not apply and that he would have to

submit a written request in any event. Counts argues that “[a] reasonable juror could

determine that Appellee breached its duty of good faith by ignoring Mr. Counts’

verbal request and by requiring that he submit a handwritten request, while

preventing him from submitting the request by removing him from the plant.”

      It appears that Counts inquired about the DRP only on that one occasion and

never submitted a written request. More importantly, it does not appear that the DRP

applied to terminations. The DRP “is intended to provide all employees . . . with a

                                         18
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.” Counts seems to argue that the absence of any

language in the DRP concerning disciplinary actions creates a factual issue as to

whether it applies to such actions. However, Human Resources Director Wendell

Mulford stated that the DRP does not provide for and has never been used to contest

disciplinary decisions. Counts does not properly dispute this assertion.

      Counts signed an express-at-will employment agreement with Kraton in 2000

that specifically provided either party “may terminate the employment relationship

at any time.” Because the record establishes Counts was an at-will employee, the

district court properly determined Kraton is entitled to summary judgment on his

breach of contract claim.

      Counts next alleges that he had an oral contract for lifetime employment. The

Ohio Supreme Court has explained how the doctrine of promissory estoppel applies

in at-will employment cases:

      [T]he doctrine of promissory estoppel is applicable and binding to oral
      employment-at-will agreements when a promise which the employer
      should reasonably expect to induce action or forbearance on the part of
      the employee does induce such action or forbearance, if injustice can be
      avoided only by enforcement of the promise.

             The test in such cases is whether the employer should have

                                         19
      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.

Mers v. Dispatch Printing Co., 

, 105, 

, 155 (1985).

At his deposition, Counts stated that his promissory estoppel claim is premised on

what three unnamed Shell employees told him in 1974–that he would be hired for a

“permanent position” and “as long as [he] performed [his] duties to the best of [his]

ability, that he would be there for life or until [he] reached retirement.” This claim

has no merit based on the At-Will Employment Agreement signed by Counts when

he began his employment with Kraton in 2000. “[S]tanding alone, praise with respect

to job performance and discussion of future career development will not modify the

employment-at-will relationship.” Helmick v. Cincinnati Word Processing, Inc., 

, 135-36, 

, 1216 (1989). Reliance by Counts on such

a promise would not have been reasonable. As the district court observed, moreover,

“it is doubtful that failing to pass a drug test constitutes the desired performance

contemplated by the employer.”

      For the reasons set forth above, the judgment of the district court is affirmed.




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