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
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.
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:
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
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.
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 ...