Tohline v. Central Trust Co., N.A.

• Decision Date: 07 September 1988
• Docket Number: No. C-870773,C-870773
• Citation: 549 N.E.2d 1223,48 Ohio App.3d 280
• Parties: , 116 Lab.Cas. P 56,385, 5 IER Cases 521 TOHLINE et al., Appellants, v. CENTRAL TRUST COMPANY, N.A., et al., Appellees. *
• Court: Ohio Court of Appeals

Page 280

48 Ohio App.3d 280

549 N.E.2d 1223, 116 Lab.Cas. P 56,385, 5 IER Cases 521

TOHLINE et al., Appellants, v. CENTRAL TRUST COMPANY, N.A., et al., Appellees. ^*

No. C-870773.

Court of Appeals of Ohio, First District, Hamilton County.

Sept. 7, 1988.

Syllabus by the Court

1. In Ohio, the two recognized exceptions to the doctrine of employment at will are implied contract and promissory estoppel. Under the implied-contract exception, a handbook may be found to alter the terms of employment only if the parties have agreed to create a contract from the handbook language; in the absence of mutual assent, a handbook is merely a unilateral statement of rules and policy that creates no rights or obligations.

2. A false statement may be protected by a qualified privilege if it is made in furtherance of a public or private duty, motivated by legal or moral considerations.

3. An employer's reasonable investigation before firing an employee does not constitute invasion of privacy or intentional infliction of emotional distress.

John H. Metz, Cincinnati, for appellants.

Timothy L. Timmel, Cincinnati, for appellee Central Trust Co., N.A.

John J. Finnigan, Jr., Cincinnati, for appellees Diebold Co. and Lee H. Shafer.

Paul C. Sunderland, Cincinnati, for appellees General Elec. Co., General Elec. Co. Aircraft Engine Group, James R. Walz, Robert McMahon, Michael Waugh, Charles Harrison and Donald Lester.

PER CURIAM.

Appellants Richard and Starla Tohline filed a multi-count lawsuit in which they accused appellees General Electric Company, Central Trust Company, Diebold Company, and some of their employees of intentional and negligent tortious activity in connection with Richard's discharge from General Electric's employment. The trial court granted summary judgment to twelve defendants and dismissed two other defendants. The appeal derives from the entries granting summary judgment.

General Electric employed appellant as a manager for procurement and supplied him with two handbooks describing employment policies. Appellant held a position of trust, and generally his managers viewed his performance favorably.

In October 1984, appellant withdrew money from an "Owl" automatic teller machine. Because the day was windy, appellant lifted the door to the money dispenser slightly and extracted the cash. The machine emitted some sounds, returned the access card but did not issue a receipt. In response to appellant's inquiry about his account the following day, General Electric Credit Union indicated that his account showed a simultaneous withdrawal and deposit of the amount of money withdrawn the day before. Appellant knew that he had not made a deposit. A short time later, appellant successfully repeated the procedure. At work, appellant encouraged a colleague to try the procedure and accompanied him as he successfully withdrew money from an Owl machine on General Electric's premises without being issued a receipt.

Appellant called Central Trust, operator of the Owl network, and offered to describe the problem with the machine; he also inquired about whether Central Trust gave a "finder's fee" in such circumstances. He called Diebold, manufacturer of the machines, with the same offer and query. Both companies declined the offer and undertook internal investigations. Diebold sent Central Trust a letter that expressed Diebold's confidence in the machines. Central Trust conducted a background check of appellant, decided to drop the matter and informed General Electric of the events.

Several managers of General Electric held informal hearings to obtain appellant's and his colleague's version of the story. The hearings led the managers to doubt the judgment and integrity of these two employees. Given the option of resignation or discharge, the colleague chose the former and appellant the latter.

In a case such as this involving the propriety of summary judgment, the trial court and appellate court apply the same standard:

(1) whether a genuine issue as to any material fact remains to be litigated;

(2) whether the moving party is entitled to judgment as a matter of law; and

(3) whether it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

Affirmative answers to all three questions are required before summary judgment can be granted.

The first five assignments of error relating to General Electric and its employees, read:

"First Assignment of Error

"The trial court erred to the prejudice of plaintiffs-appellants by granting summary judgment in favor of General Electric (and individual defendants) as to the issue of breach of contract and finding that such was an employment-at-will.

"Second Assignment of Error

"The trial court erred to the prejudice of plaintiffs-appellants by finding that reasonable minds could not conclude that defendant General Electric made representations in [sic ] which appellant relied on [sic ] to his detriment.

"Third Assignment of Error

"The trial court erred to the prejudice of the plaintiff-appellants [sic ] in granting summary judgment on the record as it existed since issues of material fact were unresolved.

"Fourth Assignment of Error

"The trial court erred to the prejudice of plaintiff-appellants [sic ] and in favor of defendant General Electric and individual defendants employed by General Electric in finding facts and weighing the credibility of witnesses for purposes of summary judgment.

"Fifth Assignment of Error

"The trial court erred to the prejudice of the plaintiffs-appellants in granting summary judgment to General Electric (and individual defendants) as to plaintiffs' claim for interference with contract, defamation, infliction of serious emotional distress, invasion of privacy and negligent investigation."

At oral argument, appellate counsel conceded that these assignments, taken together, fundamentally challenge the summary judgment entered in favor of General Electric and its named employees. We will treat these five assignments of error collectively. See App.R. 12(A).

Generally, an oral agreement of employment of no fixed duration is at will, meaning that the employee is free to seek work elsewhere and that the employer may discharge the employee without cause. Henkel v. Educational Research Council of America (1976), 45 Ohio St.2d 249, 74 O.O.2d 415, 344 N.E.2d 118. Implied contract and promissory estoppel are the two exceptions that Ohio recognizes to the doctrine of employment at will. Under the implied-contract exception, a handbook may be found to alter the terms of employment at will if the employee and employer agreed to create a contract from the writing. Cf. Henkel, supra. Absent mutual assent, a handbook becomes merely a unilateral statement of rules and policy which creates no obligations and rights. Mosley v. Warrensville Heights (May 19, 1988), Cuyahoga App. No. 53930, 1988 WL 51568, unreported. The doctrine of promissory estoppel applies to a clear promise which the employer should reasonably expect to induce reliance by the employee, who does rely on the promise and suffers injury as a result. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150. The effect is to limit an employer's right to discharge an employee.

To support his claim of implied contract, appellant produced two handbooks distributed by General Electric. In one handbook, General Electric reserved the right to discharge an employee for a legitimate reason as contemplated in the handbook. However, the entire paragraph reads:

"Finally, this guide is not intended to be a contract or create contractual obligations. The practices may be changed from time to time as need arises, and your employment with the Company is not for any fixed period of time. Just as you have the right to resign and leave the Company at any time for any reason, the Company may terminate your employment at any time for any legitimate reason."

This paragraph must be construed as a whole; appellant cannot rely on certain sentences while disregarding others. Smith v. St. Elizabeth Medical Ctr. (Oct. 14, 1986), Montgomery App. No. CA 9676, 1986 WL 11811, unreported. The disclaimer manifests the absence of mutual assent to create a contract, and a contract will thus not be implied based on this handbook. Cf. Brown v. Otto C. Epp Memorial Hospital (1984), 19 Ohio App.3d 25, 19 OBR 90, 482 N.E.2d 988; Hedrick v. Center for Comprehensive Alcoholism Treatment (1982), 7 Ohio App.3d 211, 7 OBR 272, 454 N.E.2d 1343.

The second handbook does not contain a disclaimer and, with the facts construed most favorably for appellant, would constitute an implicit contractual modification of the employment at will. General Electric stated its policy concerning employee misconduct in this handbook:

"Exempt employees are expected to use good judgment and discretion in the management of their personal and Company affairs. When the conduct of an individual's personal affairs adversely influences performance on the job, this becomes a matter of legitimate concern to the manager. In business dealings, integrity is essential. Consequently, fraudulent acts are viewed as serious breaches of conduct and in the absence of mitigating circumstances will result in dismissal."

Indisputedly, General Electric questioned appellant on his version of the withdrawals and concluded that appellant could not occupy a position of trust in the company. ¹ Appellant has not shown any facts demonstrating that General Electric breached this policy, even if the handbook is construed as altering the terms and conditions of employment.

The second exception to the employment-at-will doctrine is promissory estoppel, described earlier as binding...