Mark W. Stahl v. Brush-Wellman, Inc.
| Decision Date | 13 October 1995 |
| Docket Number | 95-LW-0856,OT-95-01 |
| Parties | Mark W. Stahl, Appellant, v. Brush-Wellman, Inc., Appellee. Court of Appeals |
| Court | Ohio Court of Appeals |
Terry J. Lodge, for appellant.
Douglas O. Meyer, for appellee.
DECISION
This case is on appeal from the December 20, 1994 judgment of the Ottawa County Court of Common Pleas, which granted summary judgment in favor of appellee, Brush-Wellman, Inc. On appeal appellant asserts the following single assignment of error:
Appellant was employed by Brush-Wellman from May 11, 1987 until the company terminated appellant's employment on September 24, 1993 on the ground that his performance was "not suited to the needs of the Elmore Accounting Dept." His supervisor attested to several instances of appellant's inadequate work performance which occurred over the prior year.
Appellant testified that he believed he was fired in retaliation for criticizing his supervisor in person during a May 1993 meeting and in a confidential consultant survey conducted earlier that year to obtain employee perceptions about the department. Appellant testified that he suspected that his supervisor had seen the confidential survey because he had used the term "glorified bookkeepers," during the May meeting with appellant (a term appellant had used in the survey to complain about the lack of professional treatment he had received in the department). Appellant also testified that his performance up to September 24, 1993 had been satisfactory and that he had received his highest raise ever with the company in April 1993.
In July 1993, a few months before appellant's employment was terminated, he had several confrontations with his supervisor. The supervisor testified that he believed that appellant was giving orders as he prepared to leave on vacation when he did not include the word "please" in his notes and also complained that appellant did not arrange for someone else to do his work while he was away (although appellant testified that others traditionally did the work). There were no conversations between appellant and his supervisor again until he was terminated in September 1993.
Appellant did not have a written contract of employment with Brush-Wellman. At the time he was hired, he understood that he could quit at any time and that the company could terminate his employment at any time. However, he alleges that an implied employment contract was created after he began working. This implied contract was allegedly created by the personnel manager identifying the company's personnel policy handbook and telling appellant that it contained policies relevant to appellant. Appellant testified that this conversation took place when the personnel manager discussed the fringe benefit package with appellant. One of the policies appellant noted in the manual was that appellee would not retaliate against appellant for airing his grievances. Appellant attests to the fact that policy handbook did not contain a disclaimer that it could not be used to imply an employment contract. The policy handbook was never admitted into evidence (an unauthenticated copy of the handbook page containing the nonretaliation policy was attached to the complaint).
Alternatively, appellant asserts that he relied upon appellee's nonretaliation promises in the handbook and through the company's training program when he voiced his grievances. Appellant and his supervisor testified that company videotaped training seminars stressed the company's nonretaliation policy. The videotape was not submitted into evidence. Based on this promise, appellant argues that appellee could not discharge him for airing his grievances under the doctrine of promissory estoppel.
The trial court granted summary judgment to appellee finding that appellant failed to submit any evidence to support his cause of action for wrongful discharge based upon theories of an implied contract or promissory estoppel. Appellant challenges this finding in his sole assignment of error on appeal.
In part, appellant's argument is centered around the summary judgment process, which is controlled by Civ.R. 56. This rule provides that summary judgment is appropriate if the following matters have been established: (1) there is no genuine issue as to any material fact; (2)the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor.
In making this determination, the court is directed by Civ.R. 56(C) to consider only "the pleading[s], depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action." Thus, a document must be accompanied by a personal certification that it is genuine in order for it to be admissible evidence for summary judgment purposes. Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220, 222-223 ().
Where the opposing party fails to object to the admissibility of the evidence under Civ.R. 56, the court may, but need not, consider such evidence when it determines whether summary judgment is appropriate. Watts v. Watts (Feb. 22, 1994), Lucas App. No. 93-200, unreported; Bergguist v. Medical College of Ohio (June 10, 1988), Lucas App. No. L-87-327, unreported; Hersch v. E.W. Scripps Co. (1981), 3 Ohio App.3d 367, 373, and Brown v. Ohio Cas. Ins. Co. (1978), 63 Ohio App.2d 87, 90-91. Furthermore, that party has waived their right to raise as error on appeal the fact that the trial court did consider such evidence. Id., and Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 258 at fn. 7.
When presented with a motion for summary judgment, the nonmoving party may not rest on his pleadings to oppose the motion. The nonmoving party must "produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph 3 of the syllabus, and Dumas v. Estate of Dumas (1994), 68 Ohio St. 3d 405, 408.
In order to defeat summary judgment in this action, appellant was required to produce sufficient evidence to raise a genuine issue of fact as to whether his discharge was wrongful based upon an implied employment contract theory or under the doctrine of promissory estoppel.
Contracts for employment which do not specify a duration of employment presumptively create employment-at-will relationships unless there is some other evidence of an intent by the parties to set a definite term of employment. An employment-at-will relationship, with no express or implied term of duration, permits either party to terminate the relationship at any time for any reason which is not contrary to law. Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541, reversed on other grounds by Painter v. Graley (1994), 70 Ohio St.3d 377, 383-384, and Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, paragraphs one and two of the syllabus.
Prior to the Mers decision, an employee could be discharged for any reason so long as the discharge did not violate an express employment contract. Today, there are four situations where the employment-at-will doctrine will not be applicable: where the employer's action violates public policy (see, Painter v. Graley (1994), 70 Ohio St.3d 377), where the employer's action violates a statute (see, Greeley v. Miami Valley Maintenance Contractors (1990), 49 Ohio St. 3d 228, paragraph one and two of the syllabus), where there is an implied contract of employment for a definite term (see, Kelly v Georgia-Pacific Corp. (1989), 46 Ohio St. 3d 134, paragraph two of the syllabus and Mers, supra at paragraph two of the syllabus), or...
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