Brandenburger v. Hilti, Inc., 54852

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtKRUPANSKY; MARK K. WIEST
Citation52 Ohio App.3d 21,556 N.E.2d 212
Parties, 53 Fair Empl.Prac.Cas. (BNA) 558, 122 Lab.Cas. P 56,910, 5 IER Cases 1681, 1 A.D. Cases 1465 BRANDENBURGER, Appellant, v. HILTI, INC., Appellee. *
Docket NumberNo. 54852,54852
Decision Date27 March 1989

Page 21

52 Ohio App.3d 21
556 N.E.2d 212, 53 Fair Empl.Prac.Cas. (BNA) 558,
122 Lab.Cas. P 56,910, 5 IER Cases 1681,
1 A.D. Cases 1465
BRANDENBURGER, Appellant,
v.
HILTI, INC., Appellee. *
No. 54852.
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
March 27, 1989.
Syllabus by the Court

1. R.C. 4112.02(A), which prohibits an alcoholic employee from being discharged without just cause because of his alcoholism, is an exception to the at-will employment doctrine.

2. An employer is not required to retain a high risk alcoholic employee and expose itself to civil and criminal liability when the alcoholic employee works in a dangerous work environment and is provided three opportunities to rehabilitate himself over a two-year period. Such an employee may be discharged for just cause as a matter of law.

Sinagra & Chinnock Co., L.P.A., William F. Chinnock, Anthony C. Sinagra and Ronald L. McLaughlin, Lakewood, for appellant.

Mansour, Gavin, Gerlack & Manos Co., L.P.A., Jeffrey M. Embleton and Eli Manos, Cleveland, for appellee.

KRUPANSKY, Presiding Judge.

Plaintiff Richard Brandenburger filed a complaint in Cuyahoga County Common Pleas

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Court, case number 81269, against defendant Hilti, Inc. Plaintiff's second amended complaint alleged: (1) breach of an implied employment contract; (2) reckless infliction of severe emotional distress; (3) breach of the covenant of good faith; and (4) wrongful discharge in violation of public policy.

At trial defendant Hilti moved for a directed verdict at the close of plaintiff's case-in-chief. On November 9, 1987 the trial court granted Hilti a directed verdict on all plaintiff's claims. Plaintiff filed a timely notice of appeal assigning four errors.

The relevant facts follow:

Plaintiff began drinking and using heroin when he was sixteen and dropped out of high school in the tenth grade. Plaintiff continued to use drugs for the next three years. In 1979 plaintiff was hired by Hilti's steel division in Kansas City, Missouri, to work for Sisco, Incorporated, a unionized subsidiary of Hilti. Defendant Hilti, a European-based company with divisions throughout the world, provides contract labor for several industries. In December 1982 Sisco became a division of Hilti.

In 1981 plaintiff received a promotion to a supervisory position and was sent to Sharon Steel in Sharon, Pennsylvania. Plaintiff was promoted from a laborer's position to a foreman who supervised between ten to twenty men. Plaintiff was concerned about his job security when he left the union for a salaried position and expressed this concern to Hilti management. Plaintiff was told: "I should not fear because as long as I did a good job I would have a job."

In 1982 plaintiff and his wife were divorced. Prior to the divorce plaintiff attempted suicide and was hospitalized two months for depression at the Trumbull County Mental Health Center. While at the mental health center plaintiff was visited by Jean Gilman, Hilti's national operations officer. It was at this point plaintiff admitted to Gilman that plaintiff's alcohol use was part of his problem. Plaintiff's medical insurance through Hilti covered his two-month in-patient treatment at the mental health center.

In June 1983 plaintiff was arrested in Youngstown, Ohio, and charged with driving under the influence of alcohol. At the urging of the Youngstown municipal judge who sentenced him, plaintiff entered the Alcoholic Clinic of Youngstown where he remained as a patient for sixteen days. Although the program at the clinic was scheduled for twenty-eight days, plaintiff walked out after sixteen days with a diagnosis of chronic alcoholism. Plaintiff's medical insurance through Hilti paid for plaintiff's visit to the clinic.

Due to plaintiff's alcoholism, Hilti transferred plaintiff from Sharon Steel to J & L Steel in Cleveland. Plaintiff received the same salary and position at J & L Steel as he did at Sharon Steel. When plaintiff arrived at J & L Steel he met with his supervisor, William Vannucci. Vannucci and plaintiff agreed plaintiff would be evaluated only on his job performance and attendance. [556 N.E.2d 215] Vannucci also told the plaintiff daily, "if you mess up, you're out the door."

At trial plaintiff testified J & L Steel was a dangerous place to work, it was a place where one needed to "keep his wits about him" and have safety always as a concern. One of plaintiff's daily duties was to drive a full-sized locomotive. Plaintiff was responsible for moving a twenty-six-ton ingot mold to the mold repair yard after a crane would place it on the train. Plaintiff also worked with grinders which weighed over two tons.

In March 1984, in spite of being threatened by Vannucci almost daily with "take one more drink and you're

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out the door," plaintiff began drinking and "using." "Using," plaintiff explained, meant injecting heroin into his veins.

On July 10 and 11, 1984 plaintiff "really tied one on and just went out and started to drink and couldn't stop." Plaintiff failed to attend work these two days. Plaintiff then called Jean Gilman, Hilti's national operations officer, and requested help. Gilman took plaintiff to Serenity Hall at St. Johns Hospital since plaintiff was intoxicated at the time. During the admittance process at St. John, plaintiff was asked, with Jean Gilman in attendance, "what is your drug of choice?" Plaintiff replied "heroin." This was the first time Hilti became aware plaintiff was a heroin user. Plaintiff was admitted to St. John Hospital and received an indefinite medical leave from his employment at Hilti. Plaintiff's medical insurance through Hilti covered plaintiff's treatment at St. John.

When he left St. John after a stay of seven days, plaintiff went to the home of his Alcoholics Anonymous sponsor and discussed his alternatives. Plaintiff was granted permission by Hilti's personnel manager to enter Gateway Rehabilitation Center, a top-rated alcoholism treatment facility. Plaintiff's medical insurance through Hilti covered plaintiff's treatment at Gateway.

On August 22, 1984 plaintiff was released from Gateway, having completed the twenty-eight-day program. When plaintiff returned to Cleveland he called Hilti to request his work schedule. Plaintiff was told "take a week off to adjust" and then come in for a meeting. On August 29, 1984 plaintiff attended a meeting with Jean Gilman at which time Gilman told plaintiff he was terminated. Plaintiff testified he was in shock since he did not expect to be discharged from Hilti. Plaintiff also claims to have suffered a loss of dignity as a result of his termination.

Plaintiff's assignments of error follow:

"I. The trial court erred in refusing to allow the jury to render its decision on plaintiff's claim for breach of implied agreement because (A) the law of Ohio recognizes claims for breach of implied agreement, and (B) based upon the evidence presented to the jury, reasonable minds could reach different conclusions upon material questions of fact, precluding directed verdict for defendant.

"II. The trial court erred in refusing to allow the jury to render its decision on plaintiff's claim for reckless infliction of severe emotional distress because (A) the law of Ohio recognizes claims for reckless infliction of severe emotional distress, and (B) based upon the evidence presented to the jury, reasonable minds could reach different conclusions upon material questions of fact, precluding directed verdict for defendant.

"III. The trial court erred in refusing to allow the jury to render its decision on plaintiff's claim for breach of the covenant of good faith because (A) the law of Ohio recognizes claims for breach of the covenant of good faith, and (B) based upon the evidence presented to the jury, reasonable minds could reach different conclusions upon material questions of fact precluding directed verdict for defendant.

"IV. The trial court erred in refusing to allow the jury to render its decision on plaintiff's claim for violation of public policy because (A) the law of Ohio recognizes claims for violation of public policy, and (B) based upon the evidence presented to the jury, reasonable minds could reach different conclusions upon material questions of [556 N.E.2d 216] fact, precluding directed verdict for defendant."

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Plaintiff's assignments of error lack merit.

Defendant contends plaintiff was employed on an at-will basis. Plaintiff argues the trial court erred when it directed a verdict for defendant Hilti at the close of plaintiff's case-in-chief since reasonable minds could differ on whether plaintiff had an implied employment agreement with Hilti and whether plaintiff was discharged for just cause. Plaintiff's argument is unpersuasive.

Civ.R. 50(A)(4) provides as follows:

"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."

In Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68, 23 O.O.3d 115, 116, 430 N.E.2d 935, 938, the court stated:

"When a motion for a directed verdict is entered, what is being tested is a question of law; that is, the legal sufficiency of the evidence to take the case to the jury. This * * * assumes the truth of the evidence supporting the facts essential to the claim of the party against whom the motion is directed, and gives to that party the benefit of all reasonable inferences from that evidence."

An oral employment agreement of indefinite duration is presumed to be terminable at will for any reason not contrary to law. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 103, 19 OBR 261,...

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29 practice notes
  • Golem v. Village of Put-in-Bay, No. 3:00CV7740.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 30, 2002
    ...merely constitute unilateral statements of company rules and regulations.") (citation omitted); Brandenburger v. Hilti, Inc., 52 Ohio App.3d 21, 24-25, 556 N.E.2d 212 (1989) ("`The parties must have a distinct and common intention which is communicated by each party to the other [......
  • Baab v. AMR Services Corp., No. 5:91 CV 2574.
    • United States
    • U.S. District Court — Northern District of Ohio
    • January 6, 1993
    ...by plaintiff is serious and of a nature that no reasonable person could be expected to endure it. Brandenburger v. Hilti, Inc., 52 Ohio App.3d 21, 29, 556 N.E.2d 212 (8th App. Dist.1989); Penn v. Rockwell Int'l Corp., 1988 WL 149613, *11, 1988 U.S.Dist. LEXIS 15409, * 29 (S.D.Ohio 1988) (Ho......
  • Blankenship v. Parke Care Centers, Inc., No. C-1-94-538.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • December 12, 1995
    ...to the likelihood of 913 F. Supp. 1052 causing, the emotional distress suffered by the plaintiff. Brandenburger v. Hilti, Inc., 52 Ohio App.3d 21, 29, 556 N.E.2d 212 D. Elements of Assault and Battery Claim To prove assault and battery under Ohio law, a plaintiff must establish that the def......
  • Gratsch v. Hamilton County Sheriff's Dept., No. C-1-97-964.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 24, 2000
    ...of the minds' that said items are to be considered valid contracts altering the terms for discharge." Brandenburger v. Hilti, 52 Ohio App.3d 21, 24, 556 N.E.2d 212 (1989). Thus, an employee "handbook may be found to alter the terms of employment at will only if the employee and em......
  • Request a trial to view additional results
29 cases
  • Golem v. Village of Put-in-Bay, No. 3:00CV7740.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 30, 2002
    ...merely constitute unilateral statements of company rules and regulations.") (citation omitted); Brandenburger v. Hilti, Inc., 52 Ohio App.3d 21, 24-25, 556 N.E.2d 212 (1989) ("`The parties must have a distinct and common intention which is communicated by each party to the other [......
  • Baab v. AMR Services Corp., No. 5:91 CV 2574.
    • United States
    • U.S. District Court — Northern District of Ohio
    • January 6, 1993
    ...by plaintiff is serious and of a nature that no reasonable person could be expected to endure it. Brandenburger v. Hilti, Inc., 52 Ohio App.3d 21, 29, 556 N.E.2d 212 (8th App. Dist.1989); Penn v. Rockwell Int'l Corp., 1988 WL 149613, *11, 1988 U.S.Dist. LEXIS 15409, * 29 (S.D.Ohio 1988) (Ho......
  • Blankenship v. Parke Care Centers, Inc., No. C-1-94-538.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • December 12, 1995
    ...to the likelihood of 913 F. Supp. 1052 causing, the emotional distress suffered by the plaintiff. Brandenburger v. Hilti, Inc., 52 Ohio App.3d 21, 29, 556 N.E.2d 212 D. Elements of Assault and Battery Claim To prove assault and battery under Ohio law, a plaintiff must establish that the def......
  • Gratsch v. Hamilton County Sheriff's Dept., No. C-1-97-964.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • March 24, 2000
    ...of the minds' that said items are to be considered valid contracts altering the terms for discharge." Brandenburger v. Hilti, 52 Ohio App.3d 21, 24, 556 N.E.2d 212 (1989). Thus, an employee "handbook may be found to alter the terms of employment at will only if the employee and em......
  • Request a trial to view additional results

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