COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59497 JAMES J. BASSAK : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION CONTROL DATA CORPORATION, ET AL.: : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 138951 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOSEPH L. COTICCHIA JOSEPH L. COTICCHIA CO., L.P.A. 1640 Standard Building Cleveland, Ohio 44113 For Defendant-Appellees WILLIAM P. FARRALL Control Data Corporation and Reminger & Reminger Co., L.P.A. Elizabeth Brand: 113 St. Clair Avenue, N.E. Cleveland, Ohio 44114 For Defendant-Appellees JOEL I. NEWMAN Commercial Building Maintenance, Newman & Newman Inc. and William Penn: 716 Leader Building Cleveland, Ohio 44114 - 2 - SPELLERBERG, J.: Plaintiff appeals from the trial court's order granting defendants' motions for directed verdict and entering judgment in defendants' favor. The relevant facts follow: Beginning in 1982, plaintiff worked for Ponstingle Cleaning Company. In 1985 he was assigned to perform day porter duties at the building of defendant Control Data Corporation (hereinafter referred to as "Control Data"). Those duties included general cleaning of the building, performing large copying jobs, maintaining stock inventories for office supplies, and doing various pick-ups and deliveries. Some time in February, 1987, plaintiff placed an unauthorized order for supplies for Control Data's small Xerox copy machine with a company called Main Distribution Center. These supplies were shipped to Control Data, accompanied by an invoice marked to plaintiff's attention. Control Data thereafter received a call from Main Distribution Center seeking payment for the supplies. When this matter came to the attention of Control Data's facilities maintenance manager, defendant Elizabeth Brand, she informed plaintiff that Control Data would pay for the supplies he ordered but his action was improper and plaintiff should not again order supplies without authorization. In April 1987, a new cleaning company, defendant Commercial Building Maintenance (hereinafter referred to as "Commercial") - 3 - was hired by Control Data. Commercial was run by defendant William Penn, who operated the business out of his home near Cincinnati, Ohio. Prior to taking over responsibility for cleaning at Control Data, Mr. Penn asked Ms. Brand if she would have any objection to his interviewing and hiring plaintiff for the position of day porter at the facility. Ms. Brand stated she had no objections. Plaintiff then applied for and gained employment with Commercial, staying at Control Data and performing essentially the same duties as he had previously. However, although plaintiff had requested a pay rate of $8.25 an hour from Commercial, he was hired at $7.00 an hour, less than what he had been receiving from the Ponstingle Company. Furthermore, his hours of work were less with Commercial. Thereafter, in July, 1987, Control Data received an invoice for more supplies ordered from Main Distribution Center. This invoice was in the amount of $939.90 and was marked "Atn: Jim Bassak." The indicated date of the new order was May, 1987. The invoice was brought to Ms. Brand's attention; Ms. Brand thereupon telephoned Main Distribution Center. She was informed that plaintiff had placed the order and that plaintiff had received a small television set from Main Distribution Center for purchasing more supplies. Ms. Brand then called Mr. Penn at his office and requested plaintiff be removed from Control Data's premises. Mr. Penn immediately called plaintiff and told - 4 - him to give his building keys and identification badge to Ms. Brand and leave Control Data's premises. Plaintiff complied. Sometime later that day Mr. Penn learned of the circumstances concerning Control Data's problem with plaintiff from Ms. Brand. He then spoke to plaintiff, telling plaintiff he was not fired; however, an investigation of the matter would be conducted. Plaintiff heard nothing further from Mr. Penn. Plaintiff subsequently filed this action in the Cuyahoga County Court of Common Pleas against Control Data, Commercial, Ms. Brand and Mr. Penn. In count one plaintiff alleged all the defendants slandered and defamed him. In count two plaintiff alleged that defendants "negligently terminated plaintiff's employment-at-will." In count three plaintiff alleged breach of promise and promissory estoppel. In count four plaintiff alleged defendants Control Data and Ms. Brand "maliciously ... and/or negligently induced" Commercial to breach plaintiff's employment contract and terminate plaintiff's employment. The case proceeded to trial. Defendants moved for a directed verdict after opening statements; they renewed the motion after the jury heard the testimony of the witnesses. Plaintiff thereupon voluntarily dismissed count four as to defendants Commercial and Mr. Penn. After hearing arguments on defendants' motion for directed verdict, the trial court granted the motion and entered judgment as to all causes of action in defendants' favor. - 5 - Plaintiff timely appeals from that order, citing two assignments of error for review. Plaintiff's first assignment of error follows: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS CDC'S AND BRAND'S MOTION FOR DIRECTED VERDICT BECAUSE GENUINE ISSUES OF MATERIAL FACT REMAIN FOR A JURY TO DETERMINE. This assignment of error lacks merit. Plaintiff argues the motion for a directed verdict should have been denied for two reasons: (1) there is an issue of fact as to whether plaintiff was an "employee" of defendants Control Data and Ms. Brand so that he would have the same contractual employment rights as their other employees; and (2) there is an issue of fact as to whether plaintiff had a right to rely on defendants' duty to follow Control Data company policies regarding employees in their dealings with plaintiff. However, plaintiff's reasoning is faulty. Civ. R. 50 states in pertinent part the following: (A) Motion for directed verdict. (1) When made. A motion for a directed verdict may be made on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence. * * * (4) When Granted on the Evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse - 6 - to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. (Emphasis added.) Regarding a motion for a directed verdict, the Ohio Supreme Court has stated as follows: When a motion for a directed verdict is entered, what is being tested is a question of law; that is, the legal sufficiency of the evidence to take the case to the jury. This does not involve weighing the evidence or trying the credibility of witnesses; it is in the nature of a demurrer to the evidence and assumes the truth of the evidence supporting the facts essential to the claim of the party against whom the motion is directed, and gives to that party the benefit of all reasonable inferences from that evidence. The evidence is granted its most favorable interpretation and is considered as establishing every material fact is tends to prove. The "reasonable minds" test of Civ. R. 50(A)(4) calls upon the court only to determine whether there exists any evidence of substantial probative value in support of that party's claim. See Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469. Weighing evidence connotes finding facts from the evidence submitted; no such role is undertaken by the court in considering a motion for a directed verdict. A motion for a directed verdict raises a question of law because it examines the materiality of the evidence, as opposed to the conclusions to be drawn from the evidence. (Emphasis added.) Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66 at 68, 69. Thus, the court noted the following: Simply because resolution of a question of law involves a consideration of the evidence does not mean that the question of law is converted into a question of fact or that a factual issue is raised. Id. at 68. See also Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App. 3d 94. - 7 - In the case sub judice, pursuant to Civ. R. 50(E), the trial court stated as the basis of its decision to grant defendants' motion for a directed verdict that the facts plaintiff presented were not enough to meet his burden of proof on the legal issues. Thus, the trial court determined plaintiff did not present enough facts to prove by a preponderance of the evidence he was an "employee" of Control Data; further, he did not present enough facts to prove he reasonably relied on Control Data's company policies relating to employees. [I]t is the duty of the trial court to direct a verdict in defendant's favor when there is no evidence tending to prove an essential element of the plaintiff's cause of action. [Citations omitted.] Hutchinson v. Sun Refining & Marketing Co. (July 14, 1988), Cuyahoga App. No. 54140, unreported. With regard to employer-employee rights between Control Data and plaintiff, the legal issue is determined by the following facts: (1) plaintiff was hired by Commercial; (2) plaintiff was told to work at Control Data by Commercial; (3) plaintiff was paid by Commercial; (4) plaintiff was removed from Control Data by Commercial. Therefore, plaintiff was, and remained, Commercial's employee. Tiffin v. McCormack (1878), 34 Ohio St. 638; Home Indemnity Co. v. Village of Plymouth (1945), 146 Ohio St. 96. There is yet no law in Ohio that would permit plaintiff to claim an employee's contractual rights as to Control Data on the basis that Control Data might be responsible - 8 - in agency or tort for an action of plaintiff. See, e.g., Gilmore v. Grandview Cement Products, Inc. (1962), 116 Ohio App. 313. Furthermore, plaintiff failed to prove by a preponderance of the evidence the existence of an implied contract of employment between himself and Control Data. In his testimony plaintiff admitted that at the time he worked at Control Data he was not aware of the existence of Control Data's policies and procedures manual. Thus, the policies and procedures manual did not create an employer-employee relationship between plaintiff and Control Data. [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. *** 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, unreported. (Emphasis added.) Tohline v. Central Trust Co. (1988), 48 Ohio App. 3d 280 at 282. Moreover, since plaintiff was not aware of the manual, he did not prove by a preponderance of the evidence his theory of promissory estoppel, since: 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. (Emphasis added.) Id. Furthermore, plaintiff was not told by anyone at Control Data that an investigation would be conducted into the matter. Thus, the record contains no basis on which to attribute - 9 - promissory liability to Control Data or to Ms. Brand individually. Id. Therefore, the trial court did not err in granting defendants' Control Data and Ms. Brand's motion for a directed verdict. Accordingly, plaintiff's first assignment of error is overruled. Plaintiff's second assignment of error follows: THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT FOR DEFENDANTS COMMERCIAL AND PENN BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST FOR THE JURY TO DETERMINE, AND THE DOCTRINE OF PROMISSORY ESTOPPEL APPLIES TO DEFENDANTS COMMERCIAL AND PENN. This assignment of error also lacks merit. Plaintiff argues a directed verdict in favor of defendants Commercial and Penn was improper for the following two reasons: (1) an issue of fact remained as to who "employed" plaintiff; and (2) the doctrine of promissory estoppel applies to these defendants. Plaintiff's arguments are unpersuasive. Civ. R. 50(A)(4) mandates the denial of a motion for directed verdict only if there is substantial competent evidence upon which reasonable minds might reach different conclusions which support the claim of the party against whom the motion is made. Hawkins v. Ivy (1977), 50 Ohio St. 2d 114. In the case sub judice, the "factual" issue of whether plaintiff was Commercial's employee is not dispositive of the legal issue raised by plaintiff in this assignment of error, i.e., whether - 10 - plaintiff produced sufficient evidence to prove a legal limit on Commercial's right to discharge him. Plaintiff and Commercial had an "at will" employment relationship. As a general rule, unless otherwise agreed, either party to an employment-at-will agreement may terminate the employment relationship for any reason which is not contrary to law. Mers v. Dispatch Printing Co., supra. Ohio courts have recognized two exceptions to the employment-at-will doctrine. Employee hand- books, company policy and oral representations may give rise to implied or express contractual provisions that alter the terms of an oral at-will employment relationship. Mers v. Dispatch Print- ing Co. (1985), 19 Ohio St. 3d 100, 104, 19 OBR 261, 264, 483 N.E. 2d 150, 154. An employer's right to discharge an employee may also be limited by representations or promises made to the employee which fall within the doctrine of promissory estoppel. Id. Uebelacker v. Cincom Systems, Inc. (1988), 48 Ohio App. 3d 268 at 271. A priori, 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 considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge. (Emphasis added.) Mers v. Dispatch Printing Co., supra, at 104. A review of the record reveals plaintiff produced not a scintilla of evidence that the terms of the employment relationship between himself and Commercial were altered by any of the means listed in Mers, supra. Furthermore, with regard to - 11 - the claim of promissory estoppel as a limit on an employer's right to discharge an at-will employee, the Ohio Supreme Court has held the following: [W]here appropriate, the doctrine of promissory estoppel is applicable and binding to oral employment-at-will agreements when a promise which the employer should reasonably expect to induce action or forbearance on the part of the employee does induce such action or forbearance, if injustice can be avoided only by enforcement of the promise. 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. (Emphasis added.) Mers v. Dispatch Printing Co., supra, at 105. In the case sub judice, plaintiff claims Mr. Penn made the statement that he was going to conduct an investigation and that this was a promise which defendants should reasonably have expected would induce forbearance on plaintiff's part from seeking other employment. However, at trial plaintiff stated the following in response to questions propounded by his own attorney: Q. Did he tell you when the investigation is over you can come back to work? A. No. * * * Q. What did Mr. Penn tell you about Betty Brand? A. He said if I had a receipt to bring it in and give it to Verna and Verna would take it and show Betty. - 12 - Q. And what would Betty do? A. Betty would look at it and determine. Q. And if Betty determined it was a receipt for postage, what was she going to do? A. If everything went all right, I presume I would get my job back. Q. Is that what William Penn told you? A. No. Q. What did he tell you? A. He told me if I had a receipt that Betty would want to see it. (Emphasis added.) There was no other evidentiary material to support plaintiff's assertion Mr. Penn's statement created a reasonable expectation of forbearance from seeking other employment on plaintiff's part. Cf. Uebelacker v. Cincom Systems, Inc., supra. Moreover, plaintiff did not meet his burden of proof that he relied on this "promise" to his detriment. Plaintiff testified that for three months after the incident at Control Data he worked for his brother, making a higher wage than he had earned with Commercial. He further testified that thereafter he worked at two other places of employment. Thus, even viewing the inferences to be drawn from the evidence in a light most favorable to plaintiff, reasonable minds could come to but one conclusion on the issue of whether defendants Commercial and Penn lawfully terminated plaintiff's employment, and that conclusion is adverse to the plaintiff. - 13 - Therefore, the trial court did not err in directing a verdict in defendants' favor. Accordingly, plaintiff's second assignment of error is overruled. The judgment of the trial court is affirmed. - 14 - It is ordered that appellee(s) recover of appellant(s) 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. DYKE, P.J., and BLACKMON, J., CONCUR JUDGE THOMAS R. SPELLERBERG* *Judge Thomas R. Spellerberg, Seneca County Common Pleas Court, Sitting by Assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .