Dunn v. Bruzzese

• Decision Date: 29 June 2007
• Docket Number: No. 06 JE 2.,06 JE 2.
• Citation: 172 Ohio App.3d 320,2007 Ohio 3500,874 N.E.2d 1221
• Parties: DUNN, Appellant, v. BRUZZESE Jr., Appellee.
• Court: Ohio Court of Appeals

874 N.E.2d 1221

172 Ohio App.3d 320

2007-Ohio-3500

DUNN, Appellant, v. BRUZZESE Jr., Appellee.

No. 06 JE 2.

Court of Appeals of Ohio, Seventh District, Jefferson County.

Decided June 29, 2007.

Irene K. Makrides, for appellant.

Montgomery, Rennie & Johnson, Linda L. Woeber, and Kimberly Vanover Riley, Cincinnati, for appellee.

DeGENARO, Presiding Judge.

{¶ 1} This appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments before this court. Plaintiff-appellant, Drema Dunn, appeals the decision of the Jefferson County Court of Common Pleas that granted summary judgment to defendant-appellee, Judge Joseph Bruzzese Jr. Dunn raises two issues on appeal.

{¶ 2} First, Dunn contends that the trial court erred in granting summary judgment to Judge Bruzzese on her claims for promissory estoppel and implied contract. However, none of the "promises" to which Dunn refers appear clear and unambiguous enough to form the basis of a promissory-estoppel claim. Furthermore, there is no evidence showing that it was reasonably certain that Dunn and Judge Bruzzese had a meeting of the minds on the terms of Dunn's future employment as a judicial secretary.

{¶ 3} Second, Dunn claims that the trial court erred when granting summary judgment on her age-discrimination claim against Judge Bruzzese. However, the undisputed evidence shows that Dunn's behavior had been a consistent distraction in the workplace and that the judge had tried resolving the issue in different ways to no avail. This conduct shows that her dismissal was not a pretext for age discrimination.

{¶ 4} For these reasons, the trial court's decision is affirmed.

Facts

{¶ 5} In 1983, Dunn began working as a legal secretary in Judge Bruzzese's law firm. During this time, she was assigned as the legal secretary to four of the firm's six attorneys, including Judge Bruzzese. Prior to Dunn's employment at the firm, Judge Bruzzese was elected to a part-time judicial position on the Jefferson County Court. When Dunn expressed a desire for better benefits, in 1991, Judge Bruzzese made her a part-time employee of the county court system as his secretary, in part to prevent her from finding another job. Over the course of her employment with the law firm, Judge Bruzzese complimented her work and told her he always wanted her to be his secretary.

{¶ 6} In November 1996, Judge Bruzzese was elected to the Jefferson County Court of Common Pleas, and Dunn became his judicial secretary. Judge Bruzzese retained the prior judge's secretary, Rita Bates, as bailiff. During Dunn's employment at the courthouse, Judge Bruzzese complimented her abilities and told her he always wanted her to be his secretary.

{¶ 7} The relationship between Bates and Dunn was described by witnesses as "dysfunctional" because of the "bullshit" that went on between them. There was more than one reason for the tensions between the two. First, the two disagreed over aspects of their job descriptions, an issue that Judge Bruzzese eventually tried to resolve by writing specific job descriptions. Dunn was also bothered by the fact that Bates had a higher salary and would take more days off work.

{¶ 8} While she worked at the law firm, Dunn would occasionally take a series of actions that Judge Bruzzese termed a "dream freeze." During these periods, Dunn would perform her work more slowly and less efficiently and would act coldly toward the judge. For instance, during a "dream freeze," Dunn would ignore the judge while taking a personal phone call until her call was complete. These periods were rare at the law firm, but became more frequent at the courthouse. Judge Bruzzese said these periods would occur whenever Dunn was upset with him and that she became upset with him when he didn't take her side in a dispute with Bates. Other witnesses saw the behavior that was termed a "dream freeze."

{¶ 9} Eventually, Judge Bruzzese tired of Dunn's complaints and behavior and, on February 5, 2002, gave her the option of either resigning or being terminated. Dunn refused to resign and was terminated by Judge Bruzzese on February 28, 2002. Judge Bruzzese hired a 20-year old female as Dunn's replacement.

{¶ 10} On September 24, 2002, Dunn brought an action in Federal District Court against Judge Bruzzese and the Jefferson County Commissioners, claiming violations of federal statutes, age discrimination, breach of implied contract, and promissory estoppel. After instituting this action, Dunn filed an administrative action with the Equal Employment Opportunity Commission ("EEOC"). Although Dunn moved to voluntarily dismiss her federal suit without prejudice, the Federal District Court dismissed Dunn's federal claims with prejudice, but dismissed her state claims without prejudice on February 2, 2004.

{¶ 11} On May 5, 2005, Dunn filed a complaint in the Jefferson County Court of Common Pleas raising the state claims that were dismissed without prejudice by the federal court. Judge Bruzzese moved for summary judgment on October 31, 2005. Dunn responded and filed her own motion for summary judgment. On January 6, 2006, the trial court granted Judge Bruzzese's motion for summary judgment in its entirety and dismissed Dunn's case.

Standard of Review

{¶ 12} In this appeal, Dunn argues that the trial court improperly granted summary judgment to Judge Bruzzese. When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court and, therefore, engages in a de novo review. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121. Under Civ.R. 56, summary judgment is proper only when the movant demonstrates that viewing the evidence most strongly in favor of the non-movant, reasonable minds must conclude that no genuine issue as to any material fact remains to be litigated, and the moving party is entitled to judgment as a matter of law. Doe v. Shaffer (2001), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. A fact is material when it affects the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 304, 733 N.E.2d 1186.

{¶ 13} When moving for summary judgment, a party must produce some facts that suggest that a reasonable fact-finder could rule in her favor. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 386, 701 N.E.2d 1023. "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264. The nonmoving party has the reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293, 662 N.E.2d 264.

Promissory Estoppel and Implied Contract

{¶ 14} In her first assignment of error, Dunn argues:

{¶ 15} "The trial court erred to the prejudice of Appellant in granting summary judgment on Appellant's claims based on promissory estoppel and implied contract."

{¶ 16} According to Dunn, Judge Bruzzese had the authority to promise her continued employment with the county as his judicial secretary and actually made that promise, and she relied on that promise to her detriment. Judge Bruzzese contends that he did not have the authority to make such a promise, that he did not make a legally enforceable promise, and that Dunn cannot prove detrimental reliance upon such a promise.

{¶ 17} As Dunn concedes, she was not a contractual employee. "A public officer or public general employee holds his position neither by grant nor contract, nor has any such officer or employee a vested interest or private right of property in his office or employment." State ex rel. Gordon v. Barthalow (1948), 150 Ohio St. 499, 83 N.E.2d 393, paragraph one of the syllabus.

{¶ 18} Furthermore, as a member of the unclassified civil service, she was an at-will employee. In Ohio, the civil service includes all offices and positions of trust or employment in the service of the state, the counties, cities, city health districts, general health districts and city school districts. R.C. 124.01(A). The civil service is then divided into the classified and unclassified service. R.C. 124.11. The classified service comprises all civil service personnel not specifically included in the unclassified service pursuant to R.C. 124.11(A). See R.C. 124.11(B). R.C. 124.11(A)(8) states that any elective officer, other than a state elective officer, is entitled to "three clerical and administrative support employees," who are unclassified civil service employees. Accordingly, Dunn was an unclassified civil servant.

{¶ 19} The significance between "classified" service and "unclassified" service "is that those employees in the classified service can be removed only for good cause pursuant to the procedures of R.C. 124.34. Employees in the unclassified service are not entitled to this protection." Smith v. Sushka (1995), 103 Ohio App.3d 465, 470, 659 N.E.2d 875. Unclassified employees are "appointed at the discretion of the appointing authority and serve[ ] at the pleasure of such authority." State ex rel. Hunter v. Summit Cty. Human Resource Comm. (1998), 81 Ohio St.3d 450, 453, 692 N.E.2d 185. Therefore, unclassified civil servants are at-will employees. Lawrence v. Edwin Shaw Hosp. (1988), 57 Ohio App.3d 93, 94, 566 N.E.2d 1256.

{¶ 20} Generally, an employment-at-will relationship may be altered by promissory estoppel or implied contract. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 103-104, 19 OBR 261, 483 N.E.2d 150. These are two distinct ways of establishing liability.

{¶ 21} A plaintiff must establish the following four elements to prove a claim of promissory estoppel: (1) a clear and unambiguous promise; (2) reliance on the promise;...