Tersigni v. Gen. Tire, Inc., Nos. 15904

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtCOOK
Citation91 Ohio App.3d 757,633 N.E.2d 1140
Decision Date20 October 1993
Docket Number16003,16092 and 16131,Nos. 15904
Parties, 10 IER Cases 379 TERSIGNI et al., Appellants, v. GENERAL TIRE, INC., Appellee. *

Page 757

91 Ohio App.3d 757
633 N.E.2d 1140, 10 IER Cases 379
TERSIGNI et al., Appellants,
v.
GENERAL TIRE, INC., Appellee. *
Nos. 15904, 16003, 16092 and 16131.
Court of Appeals of Ohio, Ninth District, Summit County.
Decided Oct. 20, 1993.

Page 758

Andrew L. Margolius and Gloria Rowland Homolak, Cleveland, for appellants.

Edward C. Kaminski, James D. Kurek and Vincent J. Tersigni, Akron, for appellee.

COOK, Presiding Judge.

The appellants, Anita Tersigni, Mary Coleman, Thomas Brown, Joseph DiSantis, and Janet Johnson, appeal from the order of the [633 N.E.2d 1141] Summit County Court of Common Pleas granting summary judgment to the appellee, General Tire, Inc. ("General Tire").

Facts

In 1979, General Tire first devised a procedure for eliminating jobs whereby more senior employees would displace or "bump" less senior employees in the same or similar position. The policy was first put into writing in 1980 and distributed to management personnel. In the early 1980s, General Tire decreased its number of employees from approximately four thousand to about nine

Page 759

hundred. The bumping policy was used throughout this period of massive layoffs.

In 1987, the bumping policy was altered slightly to cover only those employees below a certain salary level. In April 1991, the bumping policy was eliminated. General Tire then laid off approximately one hundred employees. The appellants herein, five of those employees, filed complaints against General Tire alleging promissory estoppel and breach of implied contract because General Tire failed to apply the bumping policy to them.

The appellants alleged that they knew about the widespread application of the bumping policy through communication with supervisors and other employees. They also saw the policy in action throughout the 1980s. On the strength of their seniority and the relative security of the bumping system, the appellants continued working at General Tire and did not seek other employment during the reductions in force.

General Tire filed motions for summary judgment against the appellants, which the trial court granted. The five appellants, in four cases consolidated for appeal, now appeal asserting a single assignment of error.

Assignment of Error

"The trial courts erred in granting summary judgment in favor of the employer when genuine issues of material fact and uncontested work conditions exist which demonstrate an implied contract and promissory estoppal [sic ] rights for employees to bump."

Summary Judgment

Under Civ.R. 56(C), a trial court may grant a motion for summary judgment only when (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law. " 'Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party * * *.' " Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2, 24 O.O.3d 1, 2, 433 N.E.2d 615, 616, quoting Vetovitz Bros., Inc. v. Kenny Constr. Co. (1978), 60 Ohio App.2d 331, 332, 14 O.O.3d 292, 293, 397 N.E.2d 412, 414. This court will reverse a summary judgment whenever it finds that reasonable minds could come to differing conclusions based on the evidence before the trial court.

Employment-at-Will

Under Ohio law, an employee who is hired for an indefinite period of time is an employee at will and may be terminated at any time for any reason not

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contrary to law. Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249, 74 O.O.2d 415, 344 N.E.2d 118, syllabus. However, in Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, the Ohio Supreme Court recognized two exceptions to the general rule of employment at will: implied contract and promissory estoppel. Having allowed for the possibility of modifying the at-will relationship, a court in considering summary judgment now must look for evidence supporting each theory.

Implied Contract

The Mers court recognized that the cumulative effect of various events may transform an employment-at-will agreement into an implied contract. Mers, supra, at paragraph two of the syllabus. The Mers court stated:

"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 [633 N.E.2d 1142] considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge."

To prove that they had an enforceable contract with the employer, the employees must establish an offer, acceptance, and consideration. Contrary to the appellee's argument, they need not rebut a lack of mutual assent defense. "As a contract defense, the mutuality doctrine has become a faltering rampart to which a...

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44 practice notes
  • Desanzo v. Titanium Metals Corp., No. C2-03-524.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • January 10, 2005
    ...be relied upon by Valle. "The question of reasonableness is by nature an issue for the jury." Tersigni v. General Tire. Inc., 91 Ohio App.3d 757, 762, 633 N.E.2d Page 780 1143 (1993)(citing Kelly v. Georgia-Pacific Corp.).6 For all of these reasons, Timet's Motion for Summary Judg......
  • Expeditors Intern. of Wash. v. Crowley Amer. Tran., No. C:97CV350.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • February 7, 2000
    ...Thatcher v. Goodwill Industries of Akron, 117 Ohio App.3d 525, 540, 690 N.E.2d 1320 (1997). See also Tersigni v. General Tire, Inc., 91 Ohio App.3d 757, 762, 633 N.E.2d 1140 (1993). If these requirements are met, and "injustice can be avoided only by enforcement of the promise," t......
  • Herbst v. System One Information Management, LLC, No. 1:96CV2094.
    • United States
    • U.S. District Court — Northern District of Ohio
    • September 22, 1998
    ...employment contract an employee must establish that there was an offer, acceptance, and consideration. Tersigni v. General Tire, Inc., 633 N.E.2d 1140, 91 Ohio App.3d 757, 760 (Summit County 1993). "An essential element needed to form a contract is that the parties must have a distinct......
  • Fox v. the Brown Mem'l Home Inc., Case No. 2:09–cv–915.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • January 7, 2011
    ...implied employment contract, when the promisee had been an at-will employee.” (emphasis added) (citing Tersigni v. General Tire, Inc., 91 Ohio App.3d 757, 633 N.E.2d 1140, 1142–43 (1993); Nichols v. Waterfield Fin. Corp., 62 Ohio App.3d 717, 577 N.E.2d 422, 423 (1989); Canter v. Tucker, 110......
  • Request a trial to view additional results
44 cases
  • Desanzo v. Titanium Metals Corp., No. C2-03-524.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • January 10, 2005
    ...be relied upon by Valle. "The question of reasonableness is by nature an issue for the jury." Tersigni v. General Tire. Inc., 91 Ohio App.3d 757, 762, 633 N.E.2d Page 780 1143 (1993)(citing Kelly v. Georgia-Pacific Corp.).6 For all of these reasons, Timet's Motion for Summary Judg......
  • Expeditors Intern. of Wash. v. Crowley Amer. Tran., No. C:97CV350.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • February 7, 2000
    ...Thatcher v. Goodwill Industries of Akron, 117 Ohio App.3d 525, 540, 690 N.E.2d 1320 (1997). See also Tersigni v. General Tire, Inc., 91 Ohio App.3d 757, 762, 633 N.E.2d 1140 (1993). If these requirements are met, and "injustice can be avoided only by enforcement of the promise," t......
  • Herbst v. System One Information Management, LLC, No. 1:96CV2094.
    • United States
    • U.S. District Court — Northern District of Ohio
    • September 22, 1998
    ...employment contract an employee must establish that there was an offer, acceptance, and consideration. Tersigni v. General Tire, Inc., 633 N.E.2d 1140, 91 Ohio App.3d 757, 760 (Summit County 1993). "An essential element needed to form a contract is that the parties must have a distinct......
  • Fox v. the Brown Mem'l Home Inc., Case No. 2:09–cv–915.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • January 7, 2011
    ...implied employment contract, when the promisee had been an at-will employee.” (emphasis added) (citing Tersigni v. General Tire, Inc., 91 Ohio App.3d 757, 633 N.E.2d 1140, 1142–43 (1993); Nichols v. Waterfield Fin. Corp., 62 Ohio App.3d 717, 577 N.E.2d 422, 423 (1989); Canter v. Tucker, 110......
  • Request a trial to view additional results

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