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Smith v. Council for Economic Opportunities in Greater Cleveland

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA


October 12, 1995

PATRICIA ANN SMITH PLAINTIFF-APPELLANT
v.
COUNCIL FOR ECONOMIC OPPORTUNITIES IN GREATER CLEVELAND DEFENDANT-APPELLEE

CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 259837

The opinion of the court was delivered by: Harper, P.J.

JOURNAL ENTRY AND OPINION

JUDGMENT Affirmed.

Plaintiff-appellant, Patricia Ann Smith, appeals from the granting of summary judgment in favor of defendant-appellee, the Council for Economic Opportunities in Greater Cleveland ("CEOGC"), by the Court of Common Pleas of Cuyahoga County. Appellant submits that genuine issues of material fact remain for litigation regarding her claims for wrongful discharge and intentional infliction of emotional distress. A careful review of the record compels affirmance.

I.

Appellant was hired as a Human Services/Outreach Worker at CEOGC's Glenville Neighborhood Opportunity Center ("the Glenville Center") on August 14, 1989 upon the recommendation of Chester Foney, the center's Coordinator. Appellant received a Personnel Policy Manual which provided CEOGC with the exclusive right to make employment decisions, including the termination of employees. Appellant also signed a new Employee Checklist which concluded with the following advisory:

I understand the above [CEOGC's personnel policies] are general guidelines and may be changed as business necessity requires. The above do not constitute a written contract and I understand my employment is for no definite period and may be terminated at will.

Appellant's Performance Appraisal Report for the employment period of May 23, 1992 to October 28, 1992 listed appellant's performance as "unacceptable." This "unacceptable" appraisal was signed by the appraiser, Foney, on December 28, 1992; by appellant on December 29, 1992; and a next level manager, Iris Drimmer, on February 19, 1993. The report contains Foney's specific comments that appellant's performance steadily declined during this period, and conversations with her failed to improve her performance.

A meeting took place at the Glenville Center on February 18, 1993 concerning appellant's alleged falsification of documents relating to the Customer Outreach Opportunity Program, commonly referred to as the appliance program. Foney, Judith Foley, Rosemarie Medvin, Kevin Sargent, and appellant attended the meeting. Foley was the Associate Customer Relations Coordinator of the Cleveland Electric Illuminating Company ("CEI") and Medvin was the Coordinator of Emergency Services at the St. Vincent DePaul Society ("St. Vincent").

CEI sponsored the appliance program which allowed low-income families who qualified to obtain major household appliances. St. Vincent administered the program.

Applicants to the appliance program were required to fill out appliance requests at the various CEOGC offices. Appellant, as a human service worker, would then visit an applicant's home to determine whether the applicant was in need of the requested appliance. The next step required the completion of an agency referral sheet whereon appellant would make a recommendation to St. Vincent that it should either repair the applicant's appliance or provide a new one.

Applicants, as part of the appliance program's application process, were required to submit documentation of their total household income to ensure that only low-income families received the program's benefits. Welfare recipients were required to verify their status by using a Proof of Income Form from the department of human services ("DHS") or a copy of their assistance check.

According to CEOGC, appellant did not follow this procedure, but, instead, knowingly used falsified copies of official DHS income verification forms. Rather than send applicants to the DHS for the proper verification, appellant used income verification forms with official signatures. The existing applicant's name would be "whited-out" to enable the insertion of a new applicant's name. CEOGC charged that appellant would then make a photostatic copy of the re-used form, the final product, in order to hide the falsification.

Appellant's usage of the "whited-out" form came to the attention of Medvin in the early part of February 1993. She telephoned appellant about an appliance program application processed by her, specifically to question her about the attached income verification form. Medvin contacted the DHS directly when her attempts to contact appellant were unsuccessful. DHS personnel informed Medvin that the person who prepared the income verification form, L. Russell, did not work for the department. Moreover, the caseworker assigned to the applicant whose income verification form was at issue, informed Medvin that she did not complete the form. Medvin, in turn, reviewed five other applications submitted by appellant, and discovered that L. Russell was listed as the individual who prepared each of the attached income verification forms.

Medvin, concerned with the implications of appellant's processing of the applications, arranged for the February 18, 1993 meeting. After Medvin presented the six income verification forms submitted with the applications processed by appellant, appellant admitted that she filled in the information over L. Russell's signature. Appellant explained in deposition testimony that she did not receive any formal training as to how to carry out her responsibilities under the appliance program. She, therefore, relied on past experience with the Emergency Home Energy Assistance Program ("HEAP"), experience she received when she worked part-time at the Glenville Center in 1988. According to appellant, her supervisor at the time, Janet Nevels, instructed her to use the "whited-out" technique when HEAP applicants did not have the necessary DHS income verification form. Though appellant never spoke with Foney directly about this technique, appellant assumed that Foney accepted it because he reviewed the appliance program applications before they were forwarded to St. Vincent.

Foney spoke with his supervisor sometime after the February 18, 1993 meeting. The supervisor asked what his recommendation was, and he responded that based upon past problems with appellant, he could not recommend any other action but termination. The supervisor declined to agree at that particular time, stating that she had to speak with the personnel director. Foney was ultimately advised to dismiss appellant.

In a letter to appellant dated February 19, 1993, Foney stated in part:

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You admitted during the discussion that the records had been falsified by you. Therefore, I have been authorized to terminate your services immediately, at the close of business on Friday, February 19, 1993.

You have been warned several times regarding your behavior unbecoming a Human Service Worker and this agency cannot afford this type of behavior.

Appellant thereafter wrote a letter to Fannie Lewis, the Chairperson of CEOGC's Board of Trustees, requesting a suspension from employment versus termination. Appellant chose not to pursue a grievance as outlined in the personnel manual, as suggested by Lewis and Foney.

Appellant filed her complaint in the trial court on October 19, 1993. She set forth that CEOGC wrongfully terminated her employment based upon the theories of promissory estoppel and implied contract. Appellant also alleged that the termination amounted to intentional/negligent infliction of emotional distress.

CEOGC filed a motion for summary judgment on July 16, 1994. Following additional filings by both parties, the trial court granted CEOGC's motion on September 27, 1994.

This appeal followed with appellant claiming as error:

I. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST

II. CEOGC IS BARRED FROM RAISING THE ISSUE THAT MS. SMITH DID NOT PURSUE HER WRONGFUL DISCHARGE CLAIM THROUGH THE GRIEVANCE PROCESS POLICY OF CEOGC SINCE IT DID NOT RAISE THE ISSUE IN ITS MOTION FOR SUMMARY JUDGMENT

III. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER DEFENDANT'S ACTIONS CONSTITUTE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

II.

Appellant's first and second assignments of error focus on the trial court's grant of summary judgment in favor of CEOGC. Appellant submits that genuine issues of material fact remain for litigation with regard to the propriety of her termination and the resulting infliction of emotional distress.

The granting of summary judgment is only appropriate if there is no genuine issue of material fact, and reasonable minds can come to but one conclusion which is adverse to the nonmoving party. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 201; Civ.R. 56(C). An order granting summary judgment will, therefore, only be upheld where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law when construing the evidence most strongly in favor of the nonmoving party. Wooster v. Graines (1990), 52 Ohio St.3d 180, 184-185; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.

Summary judgment is a procedural device which is used to terminate litigation and, therefore, must be awarded with caution with all doubts resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 333; see, also, Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 359. However, it "forces the nonmoving party to produce evidence on any issue for which that party bears the production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, citing Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265.

A.

Appellant challenges, in her first assignment of error, the summary judgment granted in CEOGC's favor on her wrongful discharge claim. She first asserts that the Personnel Policy Manual constituted an implied employment contract. Appellant next claims that she relied on the gradual disciplinary procedure contained in the manual, and, therefore, promissory estoppel applies since CEOGC ignored this procedure when it terminated her employment. Finally, appellant proposes that the personnel manual protected her from being terminated except for just cause, and CEOGC failed to prove just cause for her termination.

There is no dispute that appellant and CEOGC never executed a written employment contract, and CEOGC hired her for an indefinite period of time. Ohio has long recognized the doctrine of employment-at-will whereby an oral employment agreement of indefinite duration is presumed to be terminable at will by either party for any reason not contrary to law. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 103. However, "[t]he terms of discharge may be altered when the conduct of the parties indicates an intent to impose different conditions regarding discharge." Condon v. Body, Vickers & Daniel (1994), 99 Ohio App.3d 12, 18. See, Healey v. Republic Powdered Metals, Inc. (1992), 85 Ohio App.3d 281, 294.

Mers recognized two exceptions to the employment-at-will doctrine: promissory estoppel and implied contract. Mers, 103-104. Appellant relies on these two exceptions in this assignment of error. She does not submit the third exception to the doctrine in support of this assignment, i.e., wrongful termination in violation of public policy. See, Painter v. Graley (1994), 70 Ohio St.3d 377.

Pertaining to the implied contract exception,

The facts and circumstances surrounding an oral employment-at-will agreement, including the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question, can be considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge. Mers, paragraph two of the syllabus.

Generally, items such as employee handbooks, company policy or oral representations, do not alter the terms for discharge from the general rule that at will employees can be terminated for any reason not contrary to law. Brandenburger v. Hilti, Inc. (1989), 52 Ohio App.3d 21, 24; see, also, Patrick v. Painesville Commercial Properties, Inc. (1994), 99 Ohio App.3d 360; Turner v. SPS Technologies, Inc. (June 4, 1989), Cuyahoga App. No. 51945, unreported. These sort of items can comprise evidence of valid contracts which alter the terms of discharge when the parties have a "meeting of the minds" in this regard. See, Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St.3d 134; Patrick; Sowards v. Norbar, Inc. (1992), 78 Ohio App.3d 545.

In the present case, appellant received the employee manual when hired by CEOGC in 1989. She signed the New Employee Checklist following her orientation. The checklist concluded with a disclaimer that CEOGC's employment policies, including "Policies. Employee Handbook," "Discipline," and "Termination," did not constitute a written contract. Such disclaimers, absent fraud in the inducement, preclude the use of a written personnel policy manual to demonstrate an implied contract of employment. Wing, 110. We recognize appellant's explanation that she was told to sign the disclaimer without explanation. The statement was nonetheless clear and unambiguous, and appellant makes no claim that she was fraudulently induced into signing the disclaimer. She, therefore, fails to demonstrate a genuine issue of material fact regarding her implied contract argument. See, Handler v. Merrill Lynch Life Agency, Inc. (1993), 92 Ohio App.3d 356.

Appellant next contends that promissory estoppel should have prevented the trial court from granting summary judgment in favor of CEOGC on her wrongful discharge claim. A demonstration of detrimental reliance on specific promises of job security can create an exception to the doctrine of employment-at-will. Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, paragraph three of the syllabus; Mers, paragraph three of the syllabus. "The test in such cases is whether the employer should have reasonably expected its representations 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, paragraph three of the syllabus. The promise relied upon by the employee must be clear and unambiguous in its terms and the reliance must be reasonable and foreseeable. See, Condon; Healey, 284; Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656.

In the present case, appellant conceded at her deposition that neither CEOGC nor any employee thereof verbally assured her continued employment. To the contrary, the fact that she received an unacceptable job appraisal in December 1992 refutes her claim that she continued to believe her job was secure in spite of any previous notions of job security. See, Handler. She, therefore, refers to the portions of the personnel manual pertaining to CEOGC's disciplinary procedure and right to terminate employees for cause to support the promissory estoppel exception.

Appellant first challenges CEOGC's right to terminate her without resorting to less drastic measures, such as verbal or written reprimands, probation, or suspension, as outlined in the manual. She also refers to CEOGC's power to investigate an employee's alleged improper conduct prior to termination. Appellant asserts that she reasonably relied on these representations thereby altering her at will employment status. She argues, in other words, that she could not be terminated until CEOGC complied with this progressive disciplinary policy.

The manual clearly states in the Disciplinary Actions section that depending on the "nature and seriousness of the offense," CEOGC may take any action from verbal reprimand to termination. The manual thus allows CEOGC, in its discretion, to determine the appropriate discipline for an employee's actions. The section in the manual preceding the outline of the disciplinary actions describes the procedure to be followed upon the successive violations of an employee. However, CEOGC did not have to follow this procedure in cases involving serious misconduct. It was, therefore, unreasonable for appellant to believe that for every act requiring discipline, she would be subject to the progressive disciplinary steps prior to termination. See, Penwell v. Amherst Hosp. (1992), 84 Ohio App.3d 16; Gargasz v. Nordson Corp. (1991), 68 Ohio App.3d 149. Compare, Mercurio v. Therm-O-Disc, Inc. (1993), 92 Ohio App.3d 131 (evidence created jury question as to whether employees provided consideration for company's promise to abide by corrective action policy of progressive discipline before discharge.)

Appellant suggests further that assuming arguendo that she was hired as an at will employee, CEOGC made a promise through the personnel manual that termination would occur for just cause only. Appellant directs this court to Section 114:1 of the manual, titled "Termination of Employment," in suggesting that cause is necessary for involuntary termination. She then argues that CEOGC terminated her employment without just cause.

Section 114:1 reads as follows:

It is the policy of the agency to terminate employment because of an employee's resignation, (involuntary termination), discharge for cause, retirement, or as a result of a permanent reduction in the work force.

The Personal Conduct, Discipline and Rules, portion of the manual subsequently details the six types of disciplinary actions which could be undertaken by CEOGC. These disciplinary actions are verbal warnings, reprimand (written warnings), performance probation, disciplinary suspension, investigatory suspension, and termination for cause (involuntary). As is relevant to the within case, the manual provides:

Disciplinary actions shall be any one of six (6) types. The nature and seriousness of the offense shall govern the type of disciplinary action to initiate, and in all cases shall be subject to the grievance procedures.

***

VI. TERMINATION FOR CAUSE (Involuntary)

a. All involuntary terminations are initiated by the immediate supervisor and approved by the Executive Director.

b. All terminations will be in writing with a copy given to the employee.

c. All involuntary terminations are for the following:

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4. Inappropriate behavior including but not limited to:

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d. Falsifying or misusing records including applications for employment.

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14. Unauthorized Possession of Agency Property Unauthorized possession or use of any agency property, equipment, or materials is prohibited. (The employee will be discharged.)

***

15. Fraudulent Statements

Fraudulent statements of any nature in applying for employment is prohibited. (The employee may be discharged.) (Emphasis sic.)

We admit that the foregoing is a representation by CEOGC that involuntary terminations must be based on just cause. Assuming arguendo that appellant was not an at will employee based upon the promissory estoppel exception, it is well established that an employee must be at fault prior to being discharged for just cause. An employer may require specific standards of conduct and then discharge an employee who violates those standards. Piazza v. Ohio Bur. of Emp. Serv. (1991), 72 Ohio App.3d 353, 357, citing Williams v. Ohio Bur. of Emp. Serv. (Nov. 27, 1985), Cuyahoga App. No. 49759, unreported.

Herein, though Foney referred to appellant's falsification of the income verification forms in her February 1993 termination letter, he also reminded her that she was previously warned about her behavior. Other incidents which contributed to appellant's termination include: (1) her statement in her job application that she was employed at the county welfare bureau from 1980 to 1987 when, in fact, she was terminated in 1984 for numerous unexpected absences; (2) the penning of letters, on CEOGC letterhead, to a municipal court judge and a probation officer, on behalf of her boyfriend, wherein she stated that the boyfriend attended alcoholism programs, which, in fact, did not exist; and (3) the taking of agency property without permission, to wit, a forty-foot ladder, without returning the ladder or replacing it until after her termination.

Appellant was apprised of her dissatisfactory performance in December 1992 when she received the "unacceptable" performance appraisal. The appraisal report also indicated that Foney spoke with appellant about her behavior to no avail. Appellant's deposition moreover reveals her knowledge that her job security was on "thin ice."

As stated supra, CEOGC could involuntarily terminate an employee who falsified documents, made fraudulent statements in an application for employment, or possessed agency property without authorization. Whether the use of the whited-out income verification forms was a customary practice, CEOGC still had the discretion to terminate appellant's employment for other designated reasons. Contrary to appellant's position, Foney referred to appellant's past conduct in the termination letter, and each of the foregoing incidents warranted her termination for cause pursuant to the disciplinary policies contained in the manual.

We acknowledge appellant's additional challenge to her termination based upon CEOGC's alleged failure to conduct an investigation as to her falsification of records. However, the record discloses that once Medvin discovered the improperly verified forms at issue, she related her concerns to the appropriate parties. Medvin thereafter met with appellant, and Foney, in addition to other individuals involved with the appliance program, to investigate the matter. Appellant admitted during this meeting to the practice which was never shown to be a "customary practice" of CEOGC. Foney, in turn, spoke with his immediate supervisor who, despite Foney's recommendation that appellant be discharged, refused to concur in that judgment until she spoke with the personnel director. Foney ultimately received authorization to discharge appellant, and did so in writing as required by the manual.

Appellant's final allegation is that CEOGC "acted absent any good faith, honesty or fairness whatsoever when it terminated her employment." Ohio, however, does not recognize claims for breach of covenant of good faith and fair dealing in wrongful discharge actions. See, Sheets v. Rockwell Internatl. Corp. (1990), 68 Ohio App.3d 345, 352; Kuhn v. St. John & West Shore Hosp. (1989), 50 Ohio App.3d 23, 25; Pyle v. Ledex, Inc. (1988), 49 Ohio App.3d 139, 146.

In conclusion, appellant fails to create a genuine issue of material fact as to the implied contract exception to the at-will employment doctrine, or to her claim that her discharge was not for cause. The trial court's grant of summary judgment in favor of CEOGC on appellant's wrongful discharge claim was accordingly proper. Wooster; Wing; Mers; Civ. R. 56(C).

Appellant's first assignment of error is overruled.

B.

Appellant, in her third assignment of error, attacks the trial court's grant of summary judgment on her claim for intentional infliction of emotional distress. The issue is whether appellant provided sufficient evidence in support of her claim for tortious infliction of emotional distress.

"In order for an employee to prevail on a claim against [her] employer for tortious infliction of emotional distress, the employee must show that the employer intentionally, recklessly, or negligently caused the employee severe emotional distress by extreme and outrageous conduct." Condon, 21, citing Kurtz v. Harcourt Brace Jovanovich, Inc. (1990), 69 Ohio App.3d 267, 273. Appellant herein need not have suffered a contemporaneous physical injury, but her distress must be severe and debilitating. See, Condon, 21; Yackshaw v. John Carroll Univ. Bd. of Trustees (1993), 89 Ohio App.3d 237, 244.

In her deposition testimony, appellant stated that the sole basis for her intentional infliction of emotional distress claim was CEOGC's act of termination. CEOGC's decision to terminate her was merely an exercise of the agency's legal rights, and appellant cannot recover for any emotional distress which results from the agency's action. See, Condon, 22; Uebelacker v. Cincom Sys., Inc. (1988), 48 Ohio App.3d 268, 277. The trial court's grant of summary judgment on appellant's intentional infliction of emotional distress claim was therefore proper. Wooster; Civ. R. 56(C).

Appellant's third assignment of error is overruled.

II.

Appellant's second assignment of error addresses CEOGC's right to argue in this appeal that appellant's failure to observe its grievance process denies her the right to seek relief. This assignment is moot, however, in light of our ruling that the trial court properly granted summary judgment in favor of CEOGC on appellant's claims for wrongful discharge and intentional infliction of emotional distress. We, therefore, decline to review it. App.R. 12(A)(1)(c).

CEOGC is nonetheless reminded that this court is prevented from taking into consideration any materials which were not presented to the trial court. Neither party presented a full copy of the personnel manual to the trial court, and the partial copies do not contain CEOGC's grievance procedure. Despite this evidentiary deficiency, appellant is directed to Section 508:3 Personal Conduct, Discipline and Rules, Disciplinary Actions, which is contained in the lower court's record. The section commences with a paragraph which includes the following statement: "The nature and seriousness of the offense shall govern the type of disciplinary action to initiate, and in all cases shall be subject to the grievance procedure." (Emphasis added.)

Appellant's second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant its 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 Cuyahoga 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.

DAVID T. MATIA, J., CONCURS; AND *fn1 AUGUST PRYATEL, J., RET. (CONCURS IN JUDGMENT ONLY).

PRESIDING JUDGE SARA J. HARPER


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