COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58722 MARILYN SMULLEN : : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : INTERFACT POLYGRAPHS INC., : OPINION ET AL. : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 03, 1991 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 136,371 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARLENE P. EMERY EMERY & CHURCH SOLON PROFESSIONAL BLDG. 32915 AURORA ROAD SOLON, OH 44139 For Defendant-Appellants: THOMAS P. MAROTTA JAMES P. GRUBER GRUBER, MORIARTY, FRICKE & JAROS 1500 TERMINAL TOWER CLEVELAND, OH 44113 -2- SPELLACY, J.: On September 18, 1987, plaintiff-appellee Marilyn Smullen ("appellee") filed a complaint against defendant-Interfact Polygraphs, Inc. and defendant-appellant Dairy Mart Convenience Stores of Ohio, Inc. ("appellant")./1\ In her complaint, appellee claimed that Interfact Polygraphs, Inc. negligently prepared and administered a polygraph test to her. With regard to appellant, appellee alleged that she was wrongfully discharged as the store manager of appellant's store number 4223 located on Chardon Road and Route 91 in Willoughby Hills, Ohio. Appellee's complaint specifically alleged negligence, defamation, promissory estoppel, fraud, and intentional and negligent infliction of emotional distress. On July 18, 1989, appellant filed a motion for summary judgment. Appellant generally argued that appellee was precluded from bring a wrongful discharge action because she was an at-will employee. Appellant further claimed that appellee failed to meet the elements of her other causes of action. On August 22, 1989, the trial court overruled appellant's motion for summary judgment. On September 11, 1989, appellee's case against appellant and Interfact Polygraphs, Inc. proceeded to a trial before a jury. /1\ At the time of the incidents at issue, appellant owned and operated Convenient stores under the name of the Lawson Company. -3- Appellee first presented the testimony of Thomas Lee, as if on cross-examination. Mr. Lee was a Loss Prevention Manager while appellee was the manager of the Willoughby Hills Store. In the Spring of 1987, Mr. Lee recalled inventory shortages at the Willoughby Hills store. As a result of such shortages, Mr. Lee's department would be available to assist the manager, supervisor or divisional manager in order to pinpoint the problem. In this case, Mr. Lee's department was called in to assist. Mr. Lee testified that he interviewed appellee and reviewed her paper work and other internal paper work. He did learn through his investigation that a former manager of the store may have been sabotaging the store in order to make appellee look bad. Also, Mr. Lee admitted that several employees from the store quit during the period of these inventory shortages. In June, 1987, Mr. Lee contacted Interfact Polygraph, Inc. and set up polygraph tests for appellee and the few remaining employees. Mr. Lee learned that appellee had been deceptive on her polygraph, thus, she was suspended from her job. His role in this incident was to interview appellee, which he did. Mr. Lee claimed that appellee informed him that she knew what was going on but she was not going to tell them. Apparently, he offered to appellee that she could take the polygraph test again. Mr. Lee admitted that there were some employees who failed the polygraph test and still retained their jobs. -4- Appellee next called Susanne Vasil, as if on cross- examination. Ms. Vasil testified that she used to be a supervisor and a franchise coordinator with appellant. According to Ms. Vasil, appellant provided each store with a manual that set forth its rules and regulations. Within the manual was also a disciplinary procedure to be followed. According to Ms. Vasil, in order to discharge any employee, the manual provided that three warnings must be given to the employee first. Ms. Vasil further testified that she was aware of other store managers who had failed the polygraph test and also had inventory shortages, but were still retained by appellant. However, she was not personally involved in the incidents surrounding appellee. Appellee next called her district manager, Leona Taft, to testify as if on cross-examination. Ms. Taft stated that she had no specific problems with appellee and that appellee was, at least, an above-average manager. Appellee was always cooperative and maintained a very good store. Ms. Taft testified that in order to discharge an employee, it was appellant's policy to provide the employee with three disciplinary warnings. This policy was applied across the board, including managers, supervisors and district managers. An employee could only be immediately discharged if she was caught stealing or involved in drug abuse while in the store. Ms. Taft further testified about appellant's policy regarding inventory shortages. She stated that appellant's -5- "Store Manager Training Manual" adopted a 10-page policy prepared by appellant's Regional Manager and Vice President, John Wynn. The policy provided that all papers had to be audited and a surveillance set up. Further, it was essential to determine what the store manager was doing wrong and, if necessary, prepare a disciplinary report. The audit shortage policy specifically noted that "employees receiving a third written warning will be discharged." Appellee testified on her own behalf. She testified that she was originally hired by appellant in October, 1968 as a sales assistant. Appellee then worked for appellant on and off for the following eighteen years. She worked hard and was a dedicated employee who eventually earned the position of Manager. In the Fall of 1986, appellee became the manager for Store Number 4223 in Willoughby Hills. When she arrived at this particular store, she learned that it was in bad condition and that it was going to be a challenge. However, when she arrived there was no inventory shortage problem. Eventually, appellee began to suspect that the store's former manager was sabotaging the store and causing shortages. In the Spring of 1987, inventory shortages were showing up on her routine inventory reports. As a result of these problems, appellee contacted her supervisor, Michael Lehman. As a result of the inventory shortages, appellee started researches, did extra checkouts, did cigarette counts and met -6- with her employees. Appellee was unable to find anything wrong with what she was doing as store manager. Appellee and Michael Lehman discussed the situation, and Michael Lehman also checked her paperwork but found nothing wrong. Every time a new inventory was conducted, there was a shortage and appellee reacted with disbelief. Appellee claimed that Michael Lehman failed to respond to her requests for a store meeting, indoor and outdoor surveillance, and help from the local police. Appellee had some suspicions of what was going on but had no actual knowledge of the cause. Appellee said she informed Michael Lehman about her suspicions. Throughout the period in which there were inventory shortages, neither Michael Lehman nor Thomas Lee wrote a disciplinary memo regarding appellee. Never was appellee told she was doing anything wrong. After another inventory revealed a shortage, polygraph tests were scheduled for the employees. Just prior to the tests, several of appellee's employees quit. On June 29, 1987, appellee went to take her polygraph test. She was accompanied by Michael Lehman. Appellee testified that she was nervous about taking the test because of her high blood pressure and the medication she was taking. After appellee took the polygraph test, Michael Lehman and she discussed the situation, and appellee informed him that she would not take the polygraph test again. Then Michael Lehman wrote up a suspension notice that read: "On 6-29-87, you were -7- given a polygraph pertaining to recent inventory shortages at Store 4223. The results of the polygraph showed deception on the test, and is grounds for your suspension pending further investigation." Appellee stated that this was the only notice she received from appellant. Appellee said she never received any disciplinary warnings that she believed were necessary in order to be discharged. Appellee claimed that she was never contacted by anyone regarding her suspension. Appellee also claimed that no further investigation took place. As a result of these events, appellee said she suffered physically, mentally and emotionally. Appellee testified that in July, 1987, she met with Michael Lehman and Thomas Lee after her attorney contacted appellant. They had a discussion, but it was her impression that no one from appellant's office conducted any further investigation into the situation. Appellee claimed that she told them that she had some suspicions about what was going on. At this meeting, neither Michael Lehman nor Thomas Lee discussed the possibility of appellee returning to her job. At the close of appellee's case-in-chief, both Interfact Polygraph, Inc. and appellant moved for directed verdicts. The trial court granted Interfact Polygraph, Inc.'s motion and dismissed appellee's complaint against it. With respect to appellant's motion, the trial court dismissed appellee's defamation claim and proceeded to trial on all of the remaining claims. -8- The first witness to testify for appellant was appellee's supervisor Michael Lehman. Mr. Lehman testified that after the Willoughby Hills store revealed inventory shortages, he sat down with appellee and went over all the paper work of the store. Mr. Lehman knew they had a serious situation on their hands after the several audits showed large shortages. Thus, he called Thomas Lee from Loss Prevention. Mr. Lehman admitted that appellee requested surveillance and also suggested that the former manager might have been responsible for the problems. Appellee also asked him to bring the police in for help. After the third audit, Mr. Lehman made Thomas Lee set up polygraph tests for the employees. On June 29, 1987, Mr. Lehman drove appellee and another employee to Interfact Polygraphs, Inc. for the polygraph tests. After appellee's test, Mr. Lehman discussed with Thomas Lee her results, which revealed she was deceptive in certain areas. Mr. Lehman testified that he followed the company's policy and suspended appellee based on her polygraph test results. He claimed that the "progressive disciplinary" procedure did not apply to situations concerning polygraph tests. Mr. Lehman further testified that on July 29, 1987, he and Thomas Lee met with appellee and asked her for any information that would clear up her polygraph. Appellee told them that she thought the polygraph test was unfair. She also informed them -9- that she had her suspicions but she was not going to tell them about them. Mr. Lehman conceded that appellee was a good employee who was concerned about the shortages. He testified that he did not know whether appellee had anything to do with inventory shortages. According to him, he did not find anything wrong in appellee's paperwork for the store. The next witness to testify on behalf of appellant was Thomas Lee. Mr. Lee claimed that with regard to these events, the Loss Prevention Department did everything it was required to do. Mr. Lee further testified that, other than the polygraph test, there was not one shred of any evidence that appellee was involved in the cause of the inventory shortages. The last witness to testify for appellant was Rollin W. Trayte, who was the Director of Crime and Loss Prevention. Mr. Trayte testified that the "Policies and Procedures Manual" does provide for disciplinary memos, but it does not provide for "progressive discipline". He further stated that appellant does have a policy of immediate dismissal, and such policy will be enforced when an employee is not cooperative in an internal loss investigation. Mr. Trayte also cited the manual which stated that "an inventory condition that reflects: poor operation, continual shortages, or high inventory fluctuations will be considered reason for dismissal." However, Mr. Trayte noted that on the -10- same page regarding audit shortages, it reads, "employees receiving a third written warning will be discharged." According to Mr. Trayte, he had no personal involvement with the investigation of this case. Further, he stated that appellant had no information that would implicate appellee. At the close of all the evidence, appellant renewed its motion for a directed verdict. The trial court dismissed appellee's claim for negligence and appellee dismissed the negligence aspect of her claim for infliction of emotional distress. The trial court then denied appellant's directed verdict motion with respect to her claims for promissory estoppel, fraud, and intentional infliction of emotional distress. On September 14, 1989, the jury returned with its verdict for appellee. The jury awarded appellee $140,000 in compensatory damages and $42,000 in punitive damages. On October 2, 1989, appellant filed a motion for judgment notwithstanding the verdict, a new trial or remittitur. Appellant argued that it was entitled to one of these forms of relief because appellee's claims had no legal or factual foundation and the jury's award of damages was excessive and inadequate. On October 18, 1989, the trial court denied appellant's motion for judgment notwithstanding the verdict, a new trial, or remittitur. -11- Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT DAIRY MART'S MOTION FOR DIRECTED VERDICT. III. THE TRIAL COURT ERRED IN SHOWING BIAS IN ITS QUESTIONING OF APPELLANT'S WITNESS AND IN NOT THEREFORE GRANTING A MISTRIAL. IV. THE TRIAL COURT ERRED IN DENYING DAIRY MART'S MOTION FOR JUDGMENT N.O.V. OR NEW TRIAL. V. THE TRIAL COURT ERRED IN REFUSING TO GRANT A REMITTITUR OF THE EXCESSIVE COMPENSATORY DAMAGES. In its first assignment of error, appellant contends that the trial court erred in denying its motion for summary judgment. Appellant asserts that appellee offered no evidence to support her claims for promissory estoppel, fraud and intentional infliction of emotional distress. Summary judgment will not be rendered unless reasonable minds can come to but one conclusion and that conclusion is adverse to the party opposing the motion. Civ. R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64. Moreover, the party opposing the motion for summary -12- judgment is entitled to have the evidence construed most strongly in his favor. Civ. R. 56(C). Initially, appellant contends that appellee provided no evidence supporting her claim of promissory estoppel. In Ohio, it has been historically recognized that an at-will employee can be terminated for any cause. Phung v. Waste Management, Inc. (1986), 23 Ohio St. 3d 100. However, in Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, the Ohio Supreme Court held that oral representations, company rules and an employee handbook could alter the at-will employment concept through the existence of promissory estoppel. The test in such cases is "whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee." Mers, supra, at paragraph three of the syllabus. We find that appellant's affidavit and other documentary evidence were sufficient to raise a genuine issue as to whether her reliance on appellant's policies and/or employment manuals was justified and acted to alter her at-will employment status. See Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St. 3d 134. Appellant next contends that there was no genuine issue of material fact regarding appellee's claim for fraud. The elements of fraud are: a) a representation or, where there is a duty to disclose, concealment of fact; b) which is material to the transaction at hand; c) made falsely, with -13- knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; d) with the intent of misleading another into relying upon it; e) justifiable reliance upon the representation or concealment; and f) a resulting injury proximately caused by the reliance. Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St. 3d 54, 55. We find that, based on a review of all the documentary evidence submitted by the respective parties, a reasonable person could conclude that the six elements of fraud are present in the instant case. Thus, we conclude that a genuine issue of material fact existed regarding appellee's claim for fraud. Finally, appellant claims that it was entitled to summary judgment on appellee's claim for intentional infliction of emotional distress. A party who intentionally and/or recklessly causes serious emotional injury to an individual through extreme and outrageous conduct can be held liable for the resulting emotional distress. Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369. The elements of a prima facie case of intentional infliction of emotional distress are: a) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; b) that the actor's conduct was extreme and outrageous, that it went beyond all possible bounds of decency and that it can be con- sidered as utterly intolerable in a civilized community; c) that the actor's actions were -14- the proximate cause of the plaintiff's psychic injury; and d) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable person could be expected to endure it. Pyle v. Pyle (1983), 11 Ohio App. 3d 31, paragraph two of the syllabus. A review of the evidence submitted by both parties clearly establishes a jury question on the issue of intentional infliction of emotional distress. From the evidence presented, a reasonable person could conclude that all four of the elements of such an action are present in this case. For the foregoing reasons, we find that the trial court did not err in denying appellant's motion for summary judgment. Appellant's first assignment of error is not well taken and is overruled. Appellant argues in its second assignment of error that the trial court erred in denying its motion for a directed verdict made at the close of appellee's case and at the close of all the evidence. A trial court can grant a motion for a directed verdict only when, after construing the evidence most strongly in favor of the party against whom the motion is directed, it 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. Civ. R. 50(A)(4). It is the duty of the trial court to withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to -15- permit reasonable minds to reach different conclusions. O'Day v. Webb (1972), 29 Ohio St. 2d 215. In making this determination, the trial court is not to weigh the evidence or judge the credibility of witnesses but is to determine whether there exists any evidence of substantial probative value in support of the party's claim. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66. With respect to appellee's claim of promissory estoppel, we find that there was sufficient evidence presented where reasonable minds might differ as to whether appellee detrimentally relied upon promises made by appellant. Appellee presented ample testimony and also submitted employment manuals that demonstrated that appellant's policy regarding discharge was to require three disciplinary warnings before an employee was terminated. In the instant case, appellee was suspended without pay and never called back to work. In essence, appellee was discharged without receiving any prior disciplinary warnings. We find that the trial court did not err in permitting appellee's promissory estoppel claim to go to the jury. We also find that reasonable minds might have differed on the issue of fraud. In the instant case, appellant suspended appellee "pending further investigation". In other words, it was represented to appellee that an investigation would follow after her polygraph test. However, the trial transcript is devoid of any evidence demonstrating any further investigation on -16- the part of appellant. In fact, appellee was never contacted by appellant after her suspension. We find that there was sufficient evidence tending to prove the essential elements of appellee's claim for fraud. With respect to appellee's claim for intentional infliction of emotional distress, we conclude that there was sufficient evidence to raise the factual question of whether there existed any extreme and outrageous conduct on the part of appellant as to be utterly intolerable. We find that there was ample evidence regarding appellant's handling of appellee's discharge and the investigation concerning the inventory shortages that tended to prove appellant's conduct was extreme and outrageous. Further, appellee provided sufficient evidence that indicated she suffered emotional distress as a result of her discharge. Thus, we find that the trial court did not err in allowing appellee's intentional infliction of emotional distress claim to go to the jury. For the foregoing reasons, we conclude that the trial court did not err in denying appellant's motion for a directed verdict. Appellant's second assignment of error is without merit and is overruled. In its third assignment of error, appellant argues that the trial court erred in not granting a mistrial based on its biased questioning of Michael Lehman. Appellant claims that the trial court's questioning of Michael Lehman led the jury to consider irrelevant matters. -17- Upon a very careful review of the record, we are unable to conclude that the trial court's questioning of Michael Lehman was biased or stemmed from judicial ill will. Further, we find that appellant has failed to demonstrate any prejudicial error and that it was denied a fair and impartial trial. Moreover, we find that the trial court clearly acted within its discretion to ask questions in order to properly guide the progress of the trial. See, State v. Williams (1975), 43 Ohio St. 2d 88. Appellant's third assignment of error is without merit and is overruled. Appellant argues in its fourth assignment of error that the trial court erred in overruling its motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The test for a motion for judgment notwithstanding the verdict is the same as that used to sustain a motion for directed verdict. Nickell v. Gonzalez (1985), 17 Ohio St. 3d 136; See, also, Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App. 3d 181. Therefore, if reasonable minds could reach different conclusions on the basis of the evidence adduced at trial, when construed most strongly in favor of appellee, the trial court correctly denied appellant's motion for judgment notwithstanding the verdict. In light of this court's analysis of appellant's second -18- assignment of error, we find that the evidence in the instant case did not justify a judgment notwithstanding the verdict. Appellant also claims that it was entitled to a new trial, pursuant to Civ. R. 59(A)(6), because the jury's verdict was not sustained by the weight of the evidence. The ruling on a motion for a new trial rests within the sound discretion of the trial court and such a ruling will not be disturbed on appellate review absent an abuse of that discretion. Verbon v. Pennese (1982), 7 Ohio App. 3d 182. In dealing with a claim that a judgment is contrary to the weight of the evidence, a reviewing court can reverse, only if the verdict is so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to produce a result in complete violation of substantial justice. Hardiman v. Zep Mfg. Co. (1984), 14 Ohio App. 3d 222. Upon a careful review of the record, we find that there was sufficient competent and credible evidence presented at trial which supports the jury's verdict. We are unable to say that the jury's verdict can be characterized as a violation of substantial justice. Accordingly, we conclude that the trial court did not err in denying appellant's motion for a new trial. Appellant's fourth assignment of error is not well taken and is overruled. In its fifth assignment of error, appellant contends that the trial court erred in refusing to grant its motion for -19- remittitur. Appellant asserts that the jury's award of $140,000 in compensatory damages was excessive. An appellate court cannot disturb the jury's damage assess- ment unless it lacks support from any competent, credible evi- dence or resulted from passion or prejudice. Baum v. Augenstein (1983), 10 Ohio App. 3d 106. In determining whether to set aside a jury's award, a reviewing court must ascertain whether the record discloses that "the damages were induced by a) admission of incompetent evidence, or b) by misconduct on the part of the court or counsel, or c) whether the record discloses any other action occurring during the course of the trial which can reasonably be said to have swayed the jury in its determination of the amount of damages that should be awarded. Loudy v. Faries (1985), 22 Ohio App. 3d 17, 19. Evidence adduced at trial reveals that appellee lost her job and was unable to obtain new employment. Further, as a result of the nature of her discharge, she suffered emotionally and simply retreated to her bedroom. Upon a careful review of the record, we find that there is no indication that the amount of damages awarded was a result of passion or prejudice. The record is devoid of any evidence that the jury was wrongfully influenced. Appellant's fifth assignment of error is without merit and is overruled. Trial court judgment is affirmed. -20- It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, J., CONCURS; NAHRA, P.J., DISSENTS (SEE DISSENTING OPINION ATTACHED) LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58722 MARILYN SMULLEN, : : : Plaintiff-Appellee : D I S S E N T I N G : vs. : O P I N I O N : INTERFACT POLYGRAPHS INC., : ET AL., : : : Defendants-Appellants : DATE: OCTOBER 3, 1991 NAHRA, P.J., DISSENTING: I respectfully dissent. Appellee was manager of a store that had continuous inventory shortages. Appellant investigated to try and determine the cause of the shortages. The shortages persisted and appellant asked appellee and the other store employees to submit to polygraph examinations. Appellee's polygraph examination showed she was being deceptive. In addition she told her supervisor and the loss prevention manager that she knew what was going on but was not going to tell them. At this point she was let go. These basic facts gave rise to the multiple claims of this lawsuit. The trial court dismissed two negligence claims but permitted the jury to consider claims of promissory estoppel, fraud and intentional infliction of -2- emotional distress. In my opinion, the facts do not support any of these claims. I. Promissory Estoppel In order to withstand appellant's motion for a directed verdict on her promissory estoppel claim, appellee needed to establish the following four elements of that claim: (1) a promise with clear and unambiguous terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be reasonable and foreseeable; and (4) the claimant must be injured by the reliance. Kiel v. Circuit Design Technology, Inc. (1988), 55 Ohio App. 3d 63, 67. In Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, the court affirmed summary judgment for the employer on the employee's promissory estoppel claim. The employer had promised the employee an opportunity to buy into the business in the future; subsequently, the employee was summarily discharged. The court rejected the employee's promissory estoppel claim because the employer had not made "a specific promise of continued employment". Id. at 110. In this case, appellee's statement at her deposition that appellant promised to use progressive discipline may have been sufficient to withstand appellant's motion for summary judgment. However, reasonable minds could only conclude from the evidence at trial that appellant never promised appellee that she had a job so long as her performance evaluations were good; that it -3- would abide by a system of progressive discipline; or that it would only discharge appellee for cause. Appellee submitted no evidence of a promise of continued employment. Her two witnesses, Susan Vasil and Leona Taft, were supervisory employees of appellant. They both testified that they never promised appellee continued employment. R. 107, 161. Appellee testified that she "believed" that she had permanent employment based on her supervisor's statements, but these statements were only to the effect that she was doing a good job and should keep up the good work, and were not specific promises of permanent employment. R. 445-446. There was also no evidence at trial of appellant's alleged promises to use progressive discipline and to discharge employees only for cause. Susan Vasil testified that employees could be discharged summarily; that managers who failed to cooperate with investigations were subject to discharge; and that she knew of another manager who was discharged immediately following a polygraph examination. R. 85, 126, 128. She also testified that appellant's employment manuals indicated that progressive discipline was not mandatory; that the reasons warranting immediate discharge were not limited; and that continual inventory shortages were grounds to dismiss managers. R. 104- 105, 111. Vasil expressed some uncertainty as to whether appellant used progressive discipline with all employees and needed a specific reason for discharge. R. 84, 94-95. -4- Appellee's other supervisory witness, Leona Taft, stated that she did not promise appellee that employees could only be discharged for cause, and stated that appellant's employment manuals did not require progressive discipline or just cause for discharge. R. 161-162. Appellee testified that she was trained to use progressive discipline and that it applied to all employees. R. 291, 293. Appellee testified further that immediate discharge was appropriate for major infractions; that managers were responsible for inventory problems; and that she was aware of appellant's policy of administering polygraph examinations. R. 404, 413. Appellant's employment manuals also do not contain specific and unambiguous promises to use progressive discipline and to discharge employees only for cause. Appellee conceded in her opposition to appellant's motion for summary judgment that the gray Sales Assistant Handbook did not apply to her as a manager. The gray manual indicates that it was intended as a reference and training guide for managers. Its introduction states in part: "Welcome to the Lawsons Company Store Manager Development Program". Incidentally, the manual provides for the immediate termination of employees; reserves the right to administer polygraphs; and states that continued inventory shortages are reason for discharge. Appellee relies on the blue policy and procedures manual to support her promissory estoppel claim. This manual sets forth in its introduction that it is not a complete statement of all -5- company policies. Chapter 14, page 2 concerns disciplinary memos. It provides for the issuance of such memos to "any employee for violating a company policy or established procedure". It lists reasons for disciplinary action, and thereafter provides that disciplinary action is not limited to the reasons on the preceding list. It then states: Any employee who violates company policy, particularly if it could result in legal action against the company, is subject to immediate dismissal. Chapter 8 of the manual concerns termination. It states as follows: Every termination of employment (sales assistants or store managers) must include one of the following reasons, with an explanation on each personnel slip sent to the personnel department. The reasons referred to are set out in three columns, entitled "Resigned", "Discharged", and "Miscellaneous". Appellee relies on these provisions to establish that appellant promised to use a system of progressive discipline and to discharge employees only for cause. Reasonable minds could only conclude that the provisions do not make such promises. No system of progressive discipline is set forth in the manual. Although disciplinary memos are required, the manual explicitly reserves the right to terminate employees immediately in the same section. The requirement of "reasons for termination" set forth in Chapter 8 is not a promise to employees to discharge only for just cause, but rather sets forth bookkeeping -6- procedures. This is clear because "reasons" are required when employees resign as well as when they are discharged. Appellee also failed to produce evidence of detrimental reliance caused by appellant's promises. In Cohen & Co. v. Messina (1985), 24 Ohio App. 3d 22, 26, the court affirmed the trial court's finding that the elements of promissory estoppel were not established where the loss was not caused by reliance on alleged promises. See also Tohline v. Central Trust Co. (1988), 48 Ohio App. 3d 280, 283 (loss of the job did not constitute detrimental reliance in a wrongful discharge case). Cases where detrimental reliance was established include Bruno v. Struktol Co. of America (1991), 92 Ohio App. 3d 509, 513 (summary judgment for employer reversed where one employee accepted a lower starting salary and ceased job-hunting, and another abandoned a business venture, based on the employer's promises of job security) and Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St. 3d 131, 136 (summary judgment for employer reversed where employer dissuaded employee from job hunting with promises of job security). In this case, appellee produced no evidence that she changed her position to her detriment based on appellant's promises. Her "detriment" consisted of the suspension itself and her inability to find work because of it. Appellant only promised to administer a polygraph; appellee did not forego job-hunting or reject other offers of employment based on any promise of job security. The evidence at trial was insufficient for reasonable -7- minds to conclude that appellee relied to her detrimenton appellant's specific and unambiguous promises. Appellant's motion for directed verdict should have been granted on appellee's promissory estoppel claim. Appellant's second assignment of error should have been sustained as to that claim. II. Intentional Infliction of Emotional Distress To sustain a claim for the intentional infliction of emotional distress, a plaintiff must prove the following: (1) That the defendant either intended to cause the plaintiff emotional distress or should have known that his actions would cause the plaintiff emotional distress; (2) That the defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," 1 Restatement of the Law 2d, Torts (1965) 73, Section 46, Comment d; Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369...; (3) That the defendant's conduct was the proximate cause of the plaintiff's psychic injury; and (4) That the resultant emotional distress was serious, such that a "reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances..." Paugh v. Hanks (1983), 6 Ohio St. 3d 72...(further citations omitted). Uebelacker, see supra, at 275-276. See also Russ v. TRW, Inc. (1991), 59 Ohio St. 3d 42, 47, quoting Yeager, see supra, syllabus. In order to withstand appellant's summary judgment motion, appellee had to produce evidence of all of the elements -8- of her emotional distress claim. Wing, see supra, paragraph three of the syllabus. In Russ v. TRW, Inc., supra, the court held that an employee can state a claim for emotional distress in a wrongful discharge action where the proximate cause of the emotional distress is not limited to the mere fact of the discharge. See Russ, supra, at 47. In Russ, the court found that the employee had a viable claim for emotional distress because there was tortious conduct by the employer which was separate and distinct from the discharge. In this case, appellee was given a polygraph examination after substantial inventory losses continued in the store she managed for several months. The polygraph indicated that appellee had attempted deception in her responses to several critical questions. Appellee was suspended on the basis of the polygraph results pending further investigation. Appellant never determined the cause of the shortages. Appellee's suspension was never terminated, although she was never formally discharged either. Appellee's claim for emotional distress is premised upon appellant's alleged failure to follow its policies regarding inventory losses and the termination of employees; its alleged failure to adequately investigate the source of the inventory losses in the store managed by appellee; its suspension of appellee on the basis of a polygraph examination; its allegedly false assurances that it would conduct further investigation; -9- and its failure to formally discharge appellee. Since all of this conduct is related to appellee's discharge, and does not constitute a separately actionable tort as in Russ, see supra, appellee's emotional distress claim should have been dismissed pursuant to appellant's summary judgment motion. Appellee's claim should have been dismissed for the additional reason that appellee failed to submit evidence that appellant's conduct was outrageous, extreme and atrocious. Construing the evidence most favorably for appellee, it showed only that appellant's investigation was deficient and not in accord with company policy, but not that appellant's conduct was "beyond all possible bounds of human decency". Inadequate investigation of an inventory shortage and suspension of an employee who failed a polygraph examination do not rise to the level of outrageous conduct set forth in Russ, see supra. Compare to Debose v. Cleveland (July 26, 1990), Cuyahoga App. No. 59025, unreported, at 4; Deoma v. Shaker Heights, et al. (June 7, 1990), Cuyahoga App. No. 57049, unreported, at 15-16; and Etengoff v. Robert Halt of Cleveland, Inc. (April 27, 1989), Cuyahoga App. No. 56116, at 3-4 (emotional distress claims failed in all three cases due to lack of evidence of outrageous conduct). Appellee also failed to provide any evidence that appellant's conduct proximately caused her to suffer serious emotional distress. "An action to recover for emotional distress may not be premised upon mere embarrassment or hurt feelings, but -10- must be predicated upon a psychic injury that is both severe and debilitating" (citations omitted). Uebelacker, supra, at 276. Although expert testimony regarding the severity of the emotional distress is not required, merely restating the allegations of the complaint is insufficient to withstand summary judgment. Uebelacker, supra, at 276; Foster v. McDevitt (1986), 31 Ohio App. 3d 237, paragraph two of the syllabus; Civ. R. 56(E). In Uebelacker, see supra, the employee's emotional distress claim was supported by his wife's affidavit that he was highly emotional, moody, tearful, forgetful, distrustful of others, uncommunicative and unsupportive of others for a one-year period. Id. at 276. In Russ, see supra, there was evidence from the employee's psychiatrist that the employee experienced major depression and chronic post-traumatic stress disorder as a proximate result of the employer's actions. In this case, the complaint set forth detailed allegations that appellant's failure to adequately investigate inventory losses at the store appellee managed, its failure to follow its own policies, its improper reliance on the polygraph results, its suspension of appellee "pending further investigation" without formal discharge, etc. caused appellee "pain and mental anguish" and "severe emotional distress". However, appellee failed to submit any evidence from lay witnesses or mental health professionals in opposition to appellant's summary judgment motion in support of her alleged "severe emotional distress". The evidence submitted consisted of the following: appellee's -11- statement during her deposition that she was depressed at the time of the polygraph about the situation; appellee's statement in an affidavit that she "has suffered extreme emotional distress including depression over her inability to support herself and to provide a clear employment history to a prospective employer and to be free of suspicion among persons she knows in the area, including other Lawsons employees"; and appellee's answers to interrogatories, indicating that her medical expenses for treatment of her depression totalled approximately $100.00 and consisted of two visits to a doctor who allegedly treated appellee for several years. The above fails to demonstrate that appellee suffered from a severe and debilitating psychic injury. Compare to Turk v. The Ohio Bell Telephone Co. (March 22, 1990), Cuyahoga App. No. 56749, unreported, at 5-6; Ashcroft v. Mount Sinai Medical Center (Nov. 29, 1990), Cuyahoga App. No. 57720, unreported, at 6-7; Kurtz v. Harcourt Brace Jovanovich, Inc. (Aug. 23, 1990), Cuyahoga App. No. 57413, unreported, at 8-9; Garnett v. Meckler (March 29, 1990), Cuyahoga App. No. 56711, unreported, at 9-10; and Efengoff, see supra, at 4. Emotional distress claims failed in these cases due to lack of evidence of a severe psychic injury. There was no medical evidence submitted in any of these cases; as in this case, they included only the claimant's own testimony about being upset. Therefore, since appellee failed to submit evidence in opposition to appellant's motion for summary judgment that appellant engaged in tortious conduct separate and distinct from -12- its discharge of appellee, that its conduct was outrageous, and that appellee suffered severe emotional distress, appellant's summary judgment motion should have been granted as to appellee's claim for emotional distress. Appellant's first assignment of error should have been sustained as to the claim for severe emotional distress. III. Fraud The elements of fraud are: (a) a representation, or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Burr v. Bd. of Cty. Commrs. of Stark Cty. (1986), 23 Ohio St. 3d 69, paragraph two of the syllabus. In Wing v. Anchor Media, Ltd. of Texas, see supra, an employee's fraud claim was dismissed on the employer's summary judgment motion. In that case, the employee claimed that the employer fraudulently promised him future equity participation in -13- order to secure his employment until the business was sold. The claim was rejected due to lack of evidence. The court stated that a possible inference of fraud without actual evidence was insufficient to withstand summary judgment. Id. at 111. The court also found that the employee did not reasonably rely on the promise of future equity participation, because it was not a promise of continued employment. Id. In this case, appellee also failed to produce any actual evidence of fraud in opposition to appellant's motion for summary judgment. Her claim is premised on appellant's statement on her suspension notice that she was suspended on the basis of the polygraph examination "pending further investigation". Appellee argued that appellant's promise of further investigation was a false representation, made with knowledge of its falsity and the intent to "deceive [appellee] into a sense of security that [appellant] was concerned and was attempting to take some action to explain away the results of the polygraph test". Appellee allegedly relied by "hoping to hear back from [appellant]". Appellee submitted no evidence in opposition to appellant's motion for summary judgment to support her allegation that the promise of further investigation was false. Michael Lehman, appellee's supervisor at the time of her suspension, filled out the suspension notice. In his deposition, a transcript of which was attached to appellant's summary judgment motion, he stated that further investigation was conducted after appellee's suspension. Lehman deposition at 55-67. He stated that the -14- further investigation consisted of another audit; review of the research of inventory; review of sales and cash records; stopping by the store; and discussion with appellee to explain the negative polygraph results or to provide leads for investigation. Id. Smullen stated at her deposition, a transcript of which was also attached to appellant's motion, that Lehman was obviously upset about the results of the polygraph when he wrote out the suspension notice. Smullen deposition at 89-90. Even assuming that appellant falsely promised further investigation of the shortages, appellee's fraud claim is untenable. Appellant's promise to investigate further was not a promise of continued employment upon which appellee could reasonably rely. Appellee does not claim, and the evidence does not show, that appellant promised to disregard the polygraph results and reinstate her. Instead, the evidence was uncontroverted that appellee knew that appellant had a policy of administering polygraphs; that appellee was warned in advance that she had to take a polygraph if the inventory shortages continued; that appellee was told that the polygraph, even if inaccurate, reflected deception; that appellant told appellee she could retake the polygraph; that appellant asked appellee to explain the negative results of the polygraph, and asked her if she had any information about the shortages which could be investigated. Smullen Deposition at 68, 69, 86, 87-90, 92; Lehman Deposition at 55, 58-63. The evidence shows that -15- appellant did not intend to disregard the polygraph results and was not attempting to lull appellee into a false sense of security about her suspension, but shows that appellant intended to rely on the polygraph results. Since appellee failed to adduce evidence in support of the elements of fraud, appellant's motion for summary judgment should have been granted on appellee's fraud claim. Appellant's first assignment of error should have been sustained as to appellant's fraud claim. Accordingly, appellee's emotional distress claim and fraud claim should never have gone to trial and appellee's promissory estoppel claim should not have been submitted to the jury. I would reverse and enter judgment for the appellant. .