COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59560 ROBERT L. JACKSON, II : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION : MARTIN-BROWER, CO. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 26, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 162765 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Thomas L. Meros Gerald F. Penca 736 Standard Building 920 Terminal Tower Cleveland, Ohio 44113 Cleveland, Ohio 44113 Anthony S. Graefe Naphin, Banta & Cox Xerox Centre 55 W. Monroe Street Chicago, Illinois 60603 - 1 - ANN McMANAMON, P.J.: Plaintiff Robert L. Jackson II ("the employee") appeals a summary judgment in favor of defendant Martin-Brower Company ("the Company") on a wrongful discharge claim. After reviewing the record, we find the trial court properly granted summary judgment for the Company. The Company hired Jackson as a truck driver on January 3, 1979. Six years later, the Company issued a "Personal Practices Manual" to its employees which set forth company policy and conditions of employment. Of relevance to this dispute was section N of the Manual which provides: "Section N: Discharge "It is understood that the Management reserves the right to suspend or discharge, without prior written warnings, any employee for cause, including but not limited to insubordination, neglect of duty, failure to perform work in a satisfactory manner, refusal to accept necessary overtime without justifiable personal reasons, dishonesty, drunkenness, use and/or possession of, as well as under the influence of drugs, or flagrant or repeated violance [sic] of Company rules and regulations, and/or I.C.C. or D.O.T. regulations, and/or O.S.H.A. regulations." At the time he received the manual, the employee was required to sign a receipt on February 2, 1985, which provided: "Those Personnel Practices contain all the terms and conditions of employment at The Martin-Brower Company. The Provisions enumerated in this document supersede any and all previous rules and regulations written or oral - including any prior Personnel Practices and the Professional Drivers Guide. Nothing contained in the Personnel Practices is intended to create an employment agreement with The Martin-Brower Company. "I have received and will read this copy of the Personnel Practices. - 2 - "I understand that I will be accountable for all the information contained herein. "I realize that the signing of this receipt is a necessary condition of employment at The Martin-Brower Company." Four months later the company notified all drivers of proposed drug testing. The memo stated, "[f]ailure to pass the drug screen will result in disciplinary action up to and including termination." It concluded, "failure to pass the drug screen means automatic disqualification under Federal D.O.T. Regulations." The employee admits he received this notice. On October 14, 1985, the employee tested positive for marijuana. Less than one month later, he received a disciplinary report discharging him from employment for good cause based on the results of the drug test. The employee brought an action alleging the termination constituted a breach of his employment contract. Both parties filed motions for summary judgment. In its motion, the Company argued the parties had an employment-at-will relationship unaltered by the Personnel Practices Manual. The employee urged in his motion that an employment-at-will relationship did not exist. Even if such a relationship were created, however, he claims the Personnel Manual clearly delineated the terms of discharge. The employee also claimed that the doctrine of promissory estoppel was a further bar to his termination. On March 1, 1990, the trial court granted the Company's motion, denied that of the employee and this appeal ensued. - 3 - In one assignment of error, the employee claims a genuine issue of material fact remains, i.e., does the disclaimer negate section N of the employee manual. Civ. R. 56 permits the trial court, upon motion of the parties, to enter judgment as a matter of law when there are no material issues of fact in dispute. The court is required to construe the evidence in a light most favorable to the non- moving party and enter summary judgment only if reasonable minds can come to but one conclusion as to the evidence. Temple v. Wean United (1977), 50 Ohio St. 2d 317, 327. Employee handbooks, company policy and oral representations may comprise components or evidence of an employment contract. Mers v. Dispatch Printing Company (1985), 19 Ohio St. 3d 100, 104. In the present case, the employee relies on the Personnel Practices Manual as the sole basis for the existence of an employment agreement. The Ohio Supreme Court has held that when there are no facts and circumstances to indicate employment is for a specific term, such an agreement is terminable at will. Henkel v. Educational Research Council (1976), 45 Ohio St. 2d 249. Moreover, it is well-established that an oral employment agreement, which provides no term of duration, is terminable at will by either party for any reason not contrary to law. Mers, supra, paragraph one of syllabus. We find no evidence to establish that the company's right to terminate the employee was limited by agreement. The only - 4 - circumstance indicating the existence of an agreement, according to the employee himself, is the Personnel Manual. The disclaimer signed by him, however, makes clear that the Manual is not intended to create an employment agreement. Absent any other evidence, the employee was an at-will employee of the Company, subject to dismissal without cause. In Mers, the Ohio Supreme Court recognized two narrow exceptions to the employment-at-will doctrine. First, the court observed, "the existence of supplemental provisions to the oral employment agreement ... would limit the [employer's] discretion so that it could only terminate [the employee's] employment for good cause." Id. at 102. In defining these supplemental provisions, the 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 considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge." Id., paragraph two of syllabus. In Cohen & Company v. Messina (1985), 24 Ohio App. 3d 22, a panel of this court considered the effect an employee handbook or oral representations may have on an employment-at-will agreement. We stated: "Such manuals may be important in establishing the terms and conditions of employment. See Hedrick, supra. However, in order for such manuals to be considered valid contracts, there must be a 'meeting of the minds.' Parklawn Manor, Inc. v. Jennings-Lawrence Co. (1962), 119 Ohio App. 151, 156 [26 O.O.2d 341]. The parties must have a distinct and common intention which is communicated by each party to the other party." In - 5 - re Estate of Moore (P.C. 1962), 90 Ohio Law Abs. 170, 174 [26 O.O.2d 37]. Id. at 24. Without the necessary "meeting of the minds," an employee handbook merely constitutes "a unilateral statement of company rules and regulations." Turner v. SPS Technologies, Inc. (June 4, 1987), Cuyahoga App. No. 51945, unreported; Isgro v. Deaconess Hospital (October 30, 1980), Cuyahoga App. No. 41996, unreported. In the present case, the Personnel Manual, namely section N, constitutes the sole circumstance which could serve to alter the terms of Jackson's discharge. We find there was no mutual assent that the Manual was to be considered part of the agreement since the employee signed the disclaimer. As we have noted, it stated "nothing contained in the Personnel Practices is intended to create an employment agreement with The Martin-Brower Company." Given this disclaimer, we find the Manual constituted a unilateral statement of company rules and regulations and is not part of the at-will employment agreement between the parties. The second exception set forth in Mers which could alter the terms of at-will employment is the doctrine of promissory estoppel. The Mers court stated: "The doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. 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." Id., paragraph three of syllabus. In order to prevail on a promissory estoppel claim, a party must satisfy the following elements: - 6 - "(1) There must be a promise clear and unambiguous in its terms; 2) reliance by the party to whom the promise is made; 3) the reliance must be reasonable and foreseeable; and 4) the party claiming estoppel must be injured by the reliance." Cohen, supra, at 26. The employee has not demonstrated the necessary initial requirement of a clear and unambiguous promise on the part of the Company. The manual contains none. Section N merely provides a non-exclusive list of violations or acts for which an employee may be suspended or discharged. Since no initial promise was made, none of the remaining elements are satisfied. We hold, as a matter of law, the doctrine of promissory estoppel does not serve to modify the employee's at-will employment agreement. Therefore, we find that reasonable minds can only conclude that after construing the evidence most strongly in the employee's favor, there remains no genuine issue of material fact regarding the conditions of Jackson's employment with the Company. This assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its 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. SPELLACY, J., AND HARPER, J., CONCURS; SEE CONCURRING OPINION BY HARPER, J., ATTACHED TO JOURNAL ENTRY AND OPINION). PRESIDING JUDGE ANN McMANAMON 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. .