COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67307 MARK W. SULLIVAN : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION DATA GENERAL CORPORATION : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 23, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 214365 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: THOMAS M. MORONEY, ESQ. STUART S. EILERS, ESQ. 1230 Standard Building CARL H. GLUEK, ESQ. Cleveland, Ohio 44113 THOMAS J. PIATAK, ESQ. THOMPSON, HINE AND FLORY 1100 National City Bank Building 629 Euclid Avenue Cleveland, Ohio 44114 - 2 - DYKE, J.: Appellant was employed by appellee, Data General Corporation ("DGC"), from October 27, 1986 until January 6, 1989 as a computer salesperson. He filed a complaint against DGC on July 12, 1991, alleging wrongful discharge under a theory of promissory estoppel and intentional and/or negligent infliction of emotional distress. Appellant claimed that DGC had formulated a detailed plan which it followed in terminating its employees. Appellant relied on this plan to his detriment when DGC failed to follow its discharge policies in his case, according to his complaint. Appellant also asserted that he suffered emotional distress from DGC's wrongful termination of his employment. DGC filed a motion for summary judgment with the trial court, January 10, 1992. DGC attached relevant portions of appellee's deposition, the letter detailing the offer of employment, a document entitled "Employment Agreement" and an affidavit of Patrick Ryan, appellant's supervisor at DGC. The company argued in its motion that appellant failed to allege any specific promises made to appellant, upon which he could reasonably rely to his detriment. As to the emotional distress claim, DGC argued that appellant failed to allege any facts to support the requisite element of severe emotional distress. Appellant filed its brief in opposition to DGC's motion for summary judgment. Appellant also attached portions of his own deposition; an affidavit asserting that none of the discharge - 3 - procedures were followed and that he was emotionally devastated by DGC's actions; and an affidavit from Paul Smith, a former co- worker who averred that discharge procedures did exist at DGC. DGC's motion for summary judgment was granted by the trial court on May 2, 1994, after an unexplained delay in the proceedings below. Appellant filed a timely notice of appeal from the court's grant of summary judgment for appellee, asserting three assignments of error. I THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON MR. SULLIVAN'S CLAIM FOR WRONGFUL DISCHARGE SINCE THERE EXIST SEVERAL ISSUES OF MATERIAL FACT WHICH MUST BE WEIGHED BY THE TRIER OF FACT. II THE FACTS IN DISPUTE WITH REGARD TO MR. SULLIVAN'S CLAIM FOR WRONGFUL DISCHARGE WERE IMPROPERLY DISREGARDED BY THE TRIAL COURT. Appellant's first two assignments of error are interrelated and will be treated together. Appellant argues that the court disregarded the relevant issues of material fact concerning DGC's disregard for the company discharge procedures, whether or not appellant relied upon the discharge procedures, and whether or not appellant had permission to attend a convention in California just prior to his termination. Given the existence of material issues of fact in dispute, appellant asserts that the motion for summary judgment was granted in error. We do not agree. Civ.R. 56(C) provides, in relevant part: - 4 - * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. There does not appear to be any dispute as to how DGC terminated appellant's employment. Appellant had been warned with regard to his inappropriate actions at a performance review meeting on October 27, 1988. The following month he requested permission to attend a convention in California with one of his customers. Appellant admitted to being aware that prior approval was necessary for such a trip. At the time he left he did not know whether he had such approval or not. (Appellant's Deposition transcript pp. 121-22). In appellant's complaint he states in paragraph eleven that he knew the trip would not constitute "more than a moderately serious offense as defined in the Employee Guide book." Upon his return from the trip, a meeting was held at which appellant's employment was terminated. Appellant was given three weeks of severance pay. The Employee Guide book contains a detailed procedure for disciplinary actions depending upon the seriousness of the offense which the company can take prior to discharge. This section is prefaced by the following disclaimer: - 5 - The rules listed here and in the following section on discipline are only representative examples. Actual situations are dealt with and action taken based on the facts at hand and in the framework that these rules and examples provide. The Employee Guide book is attached to appellant's complaint and the relevant section is labeled "Exhibit C." Appellant also submitted a memo from Human Resources dated February 1986, which details the procedure for voluntary and involuntary terminations. On page 5 of the document, labeled "Exhibit H," involuntary terminations for performance are discussed. Under this section the company's policy is that, "Terminations based on performance are given with two week's notice." On the following page the section continues: The notice period may be waived by department managers, with approval of the cognizant Human Resources manager, if in the best interest of the company. If a notice period is waived, the employee is given "Pay in Lieu of Notice" up to two weeks (10 working days), as if the notice period had been worked. The same memo also provides that all employees are entitled to an opportunity to speak or his or her behalf with the immediate supervisor and a Human Resources representative. In connection with involuntary terminations, the memo also provides that a termination must be approved by at least two levels of functional management and a Human Resources manager prior to notifying the employee. These are the policy statements which appellant purports to have relied upon to his detriment in addition to several vague - 6 - references to assurances by his supervisors and Human Resources personnel that the company would be fair. We do not see that a material issue of fact is in dispute with regard to the circumstances surrounding appellant's termination. No fact relating to DGC's discharge procedure is in dispute. Whether or not appellant relied upon the discharge procedures is not disputed by DGC. Whether that reliance was reasonable remains in dispute, although it is a legal issue for the trial court to resolve and not an impediment to the granting of a summary judgment motion. Whether or not appellant's trip to the convention was approved is not a relevant issue of fact, given that appellant is not claiming that he could not be fired except for cause. Appellant's assertion is that DGC did not follow its own discharge procedures. The fact that appellant was fired after an unapproved trip is irrelevant to appellant's claim that DGC fired him without following its own policies. Appellee's motion for summary judgment successfully argued that no genuine issue of material fact was in dispute and that it was entitled to judgment as a matter of law. Once DGC filed its motion for summary judgment, appellant faced the burden to produce evidence on any of the issues for which he would be responsible at trial. Wing v. Anchor Media (1991), 59 Ohio St.3d 108, 111. Under the law of wrongful discharge: To establish a claim based upon promissory estoppel, the plaintiff must demonstrate that there was a promise, clear and unambiguous in its terms; reliance by the party to whom the promise is made; that the reliance was - 7 - reasonable and foreseeable; and that the party claiming estoppel was injured by the reliance. Healey v. Republic Powdered Metals, Inc. (1992), 85 Ohio App.3d 281, 284. The evidence presented by appellant did not meet the standard set forth above to prove each of the elements of promissory estoppel. No promise was ever made by anyone at the company, nor was one contained in any of the documents in the record, purportedly relied upon by appellant, which clearly set forth the intent of DGC to terminate appellant's employment in any way other than the way they did. [I]n raising promissory estoppel, an employee cannot rely on `nebulous representations' by the employer, but must point to `specific promises.' In the absence of such promises, the employee is hard pressed to demonstrate that he was justified in detrimentally relying on the employer's representations. Penwell v. Amherst Hospital (1992), 84 Ohio App.3d 16, 20, quoting Bruno v. Struktol Co. of Am. (1991), 62 Ohio App.3d 509, 514. Where appellant was unable to provide evidence of specific promises upon which he relied to his detriment, appellee was entitled to judgment as a matter of law. The court did not err in granting appellee's motion for summary judgment as to the claim of wrongful discharge. Appellant's first and second assignments of error are overruled. - 8 - III THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF DATA GENERAL AS TO COUNT II OF MR. SULLIVAN'S COMPLAINT WHICH ALLEGES A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. Appellant argues in his brief that DGC's actions in firing him with the belief that his conduct was appropriate in going to California intentionally inflicted emotional distress. This statement is not supported by appellant's own complaint nor by his deposition testimony. In both cases he admits to not knowing whether or not he had prior approval to take the trip. Nevertheless, we must affirm the court's granting of summary judgment on this claim because appellant fails to offer proof of extreme and outrageous conduct on the part of DGC or of any serious emotional distress experienced by appellant. The actionable conduct constituting the tort of intentional infliction of emotional distress was explained by the Ohio Supreme Court as follows: One who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another is subject to liability for such emotional distress, and if bodily harm results from it, for such bodily harm. Russ v. TRW, Inc. (1991), 59 Ohio St.3d 42, 47, quoting Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374. Appellant's evidence of his treatment by DGC hardly rises to the requisite level of outrageousness. Furthermore, the only harm alleged to have been suffered by appellant is found in his deposition testimony. He stated that his emotional condition has: - 9 - [M]anifested itself in a disgust and kind of bitterness in the way that I was treated, and I don't know how that colors my outlook on life, colors my outlook on getting another job, a fear of large corporations and the powerlessness you have in that situation. (Deposition transcript p. 171). Appellant described the physical manifestations of his emotional distress in terms of losing his temper more easily and experiencing nervousness and a loss of energy. This is not sufficient evidence of any serious emotional distress. The trial court properly granted appellee's motion for summary judgment on appellant's claim for intentional infliction of emotional distress. Appellant's third assignment of error is overruled. The trial court's ruling granting summary judgment for appellee is affirmed. - 10 - 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 Court of Common Pleas 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. PATTON, CHIEF JUSTICE, AND SPELLACY, J., CONCUR ANN DYKE JUDGE 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. .