COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67459 WILLIAM S. RAYEL : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : THE WACKENHUT CORPORATION, : OPINION ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JUNE 8, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CP-251129. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Robert F. Belovich, Esq. Julia Ryan Sullivan, Esq. 5638 Ridge Road Parma, OH 44129 For Defendants-Appellees: David. J. Hooker, Esq. Thomas J. Piatak, Esq. Thompson, Hine & Flory 1100 National City Bank Bldg. 629 Euclid Avenue Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Plaintiff-appellant, William S. Rayel, appeals from the decision of the Cuyahoga County Court of Common Pleas, which granted summary judgment in favor of defendants-appellees, Wackenhut Corporation, et. al., and which dismissed appellant's complaint. Appellant assigns four errors for review. This court, finding no error, affirms the judgment of the trial court. I. STATEMENT OF THE CASE Plaintiff-appellant, William S. Rayel, was hired to work as a security guard on a part-time basis by defendant-appellant, the Wackenhut Corporation ["Wackenhut"], in 1972. Appellee-Wackenhut is in the business of providing security-related services, which is broken down into two categories: "Service 11" consisting of physical security, or body guard services; "Service 20" consisting of investigative services. In April, 1980, appellant accepted full-time employment with appellee-Wackenhut as an Area Manager and Investigator. In his capacity as Area Manager, appellant was responsible for all of the Service 11 and Service 20 services provided in the Cleveland area. Appellant signed a non-competition agreement with appellee- Wackenhut at this time. Appellant alleges that also at this time, Mr. Robert Green, a Wackenhut Area Manager, told appellant that Wackenhut did not fire "for no good reason," and that as long as appellant did his job, "there would be no problem." Appellant construed such alleged statements to mean he would only be discharged for good cause. -3- Appellant was promoted several times, most recently to the position of Area Manager in 1984. In October, 1991, defendant- appellee, Carl Page, was appointed to District Manager, a newly- created position whereby appellee-Page was appellant's supervisor. Appellee-Page had previously worked for appellee-Wackenhut as Area Director for the Columbus Office area. After appellee-Page assumed this position, appellee-Wackenhut bid for, and received, a contract with the state of Ohio to provide security guard service to state liquor stores in and around the Youngstown, Ohio area ["the Youngstown contract"]. Under the bid specifications, appellee- Wackenhut was to provide armed guards who were properly licensed pursuant to state law. Specifically, such guards were to have complied with all provisions of R.C. 4749 regarding the licensing and carrying of firearms. Appellant maintains that while preparing appellee-Wackenhut's bid for the Youngstown contract, he informed appellee-Page that the company could not fulfill the bid specifications because, contrary to state law, none of its employees in the relevant counties fulfilled the necessary certification requirements authorizing them to bear firearms. According to appellant, appellee-Page still directed him to prepare the bid, allegedly because appellee-Page assured appellant that he knew someone in the State purchasing department who would waive the bid specifications if appellee- Wackenhut was awarded the contract. Appellee-Wackenhut did receive the contract. -4- Appellant alleges that he again informed appellee-Page that their employees were not properly certified to bear firearms. Nevertheless, appellee-Page told him to staff several of the liquor stores with armed guards who lacked proper licensing, in violation of R.C. 4749. On February 26, 1992, an Ohio Department of Commerce Investigator visited the contract sites and learned of the impermissible staffing. Appellee-Wackenhut was cited for violation of Chapter 4749. Properly-qualified guards from appellee- Wackenhut's Columbus office were assigned to work at the liquor stores until the original guards were properly trained. On April 30, 1992, appellant received a letter from appellee- Page, with a copy sent to another Wackenhut employee, Mr. Guastella, wherein appellant was warned of appellee-Page's dissatisfaction with appellant's job performance. The letter specifically cited the staffing problems that arose under the Youngstown contract and warned appellant of potential "remedial action." On May 29, 1992, the Ohio Department of Commerce instituted license revocation proceedings against appellee-Wackenhut. On June 2, 1992, appellee-Page met with appellant to terminate him for alleged continued inadequate job performance, particularly in terms of Service 20 revenues. During the course of such meeting, appellant received a phone call from the Ohio Department of Commerce regarding the administrative action filed against appellee for violations of the Youngstown contract. Appellant allegedly -5- asked appellee-Page if the Department of Commerce action was related to appellant's termination. Appellee-Page denied that the two events were linked and terminated appellant. Appellant filed a complaint in the Cuyahoga Court of Common Pleas in April, 1993, naming both the Wackenhut Corporation and Carl Page as defendants. Appellant alleged four causes of action: (1) wrongful discharge, (2) breach of implied contract, (3) intentional interference with a contractual relationship, and (4) defamation. Appellees' motion for summary judgment was granted May 16, 1994. Appellant timely appealed. II. ASSIGNMENTS OF ERROR Since the assignments of error raised by plaintiff-appellant, William S. Rayel, raise similar issues of law and fact, this court will consider them concurrently. I. THE TRIAL COURT ERRED IN GRANTING THE WACKENHUT CORPORATION SUMMARY JUDGMENT ON MR. RAYEL'S CLAIM FOR WRONGFUL DISCHARGE BECAUSE MR. RAYEL OFFERED EVIDENCE FOR ALL THE ELEMENTS OF A CAUSE OF ACTION FOR WRONGFUL DISCHARGE. II. [THE] TRIAL COURT ERRED IN GRANTING THE WACKENHUT CORPORATION SUMMARY JUDGMENT ON MR. RAYEL'S CLAIM FOR BREACH OF CONTRACT. III. THE TRIAL COURT ERRED IN GRANTING CARL PAGE SUMMARY JUDGMENT ON MR. RAYEL'S CLAIM FOR INTENTIONAL INTERFERENCE WITH AN EMPLOYMENT RELATIONSHIP. IV. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS SUMMARY JUDGMENT ON MR. RAYEL'S CLAIM FOR LIBEL, BECAUSE MR. RAYEL PRESENTED SUBSTANTIAL EVIDENCE -6- THAT MR. PAGE'S DEFAMATORY MEMORANDUM WAS PUBLISHED WITH ACTUAL MALICE. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON ALL FOUR CAUSES OF ACTION William S. Rayel, plaintiff-appellant, argues the trial court erred in granting defendants-appellees', Wackenhut Corporation, et al., motion for summary judgment. Specifically, appellant argues the trial court ignored established precedent and failed to consider evidence provided establishing genuine issues of material fact as to all four counts of the complaint. Additionally, appellant argues the trial court failed to address R.C. 4749 in support of his claimed "public policy" violation. Appellant's assignments of error are not well taken. B. THE STANDARD OF REVIEW APPLICABLE TO SUMMARY JUDGMENT The standard of review for summary judgment is well established. Pursuant to Civ.R. 56(C), summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) 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, 364 N.E.2d 267, 274. See, also, Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. -7- A party opposing a motion for summary judgment must not rely on the pleadings, but must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. See Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265, 273-74. The issue to be tried must be "genuine," such as to allow reasonable minds to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202, 211-14. With these principles in mind, the court will now consider appellant's claims for wrongful discharge, breach of implied contract, intentional interference with a contractual relationship and libel. C. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT ON THE ISSUE OF WRONGFUL DISCHARGE. Absent a written employment contract, it is well-recognized in Ohio that employment is deemed to be at-will, that is, either the employee or the employer may terminate the employment relationship at any time, for any reason not contrary to law. Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St. 3d 228; Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100. See, also, Molnar v. Young Men's Christian Assoc. (Dec. 9, 1993), Cuyahoga App. No. 64105, unreported. An exception to the at-will doctrine prohibits an employer from discharging an at-will employee where such discharge contravenes a clear public policy. Greeley, supra. Such public policy may -8- be found in a legislative enactment, Greeley, supra, or in other sources of law, including the state constitution, U.S. constitution, administrative rules, or the common law. Painter v. Graley (1994), 70 Ohio St.3d 377, paragraph three of the syllabus. Appellant alleges his discharge was in violation of R.C. 4749. Neither the facts nor the law relevant to the public policy exception are present here. In cases where the public policy exception has been applied, the employer has used as the basis for the employee's discharge an independent legal duty of the employee. See, e.g., Greeley, supra (employer used as basis for discharge a court order subjecting employee's wages to withholding for child support; court gave another example of public policy exception relevant where employee is discharged for serving on jury, which he is bound to do by law). In the instant case, appellant argues that the public policy exception applies because he presented evidence to show appellee, the employer, violated the law, and that such violations resulted in appellant's discharge. However, the facts of this case are not analogous to those cases where the statutory public policy exception has been applied. The statute involved herein placed legal duties on appellee- Wackenhut, not on appellant. Ohio Revised Code Chapter 4749 directs companies in the business of providing security services to comply with the statute's licensing requirements. Unlike the appellant in Greeley, appellant here was not discharged for -9- compliance with his own legal duties. In fact, appellant readily points to defendant-appellee, Carl Page, as having allegedly violated R.C. 4749. Thus, there is no public policy issue, since appellant does not allege he was discharged for any of his own actions. Further, although this court is not bound to hear issues on appeal that were not raised below insofar as appellant claims he was discharged as a "scapegoat" for the appellees' own violations, his wrongful discharge claim sounds in a whistleblower action, as appellees point out. Under Ohio's Whistleblower Act, employees are protected from employer reprisal, including discharge, for reporting its employer's illegal actions to its employer. See R.C. 4113.52. Appellant cannot now attempt to create a Greeley-type public policy exception to at-will employment for the specific act of whistleblowing, since R.C. 4113.52 already preempts such an exception. See Bear v. Geetronics, Inc. (1992), 83 Ohio App.3d 163, 167. As a result, appellant's first assignment of error is not well taken. D. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT ON THE ALLEGED BREACH OF AN IMPLIED CONTRACT CLAIM. It is undisputed that there was no written employment contract governing the circumstances under which appellant could be terminated by appellee-Wackenhut. Thus, appellant bears the "heavy burden" of establishing the existence of an implied -10- contract as an exception to the presumption of at-will employment. Penwell v. Amherst Hosp. (1992), 84 Ohio App.3d 16, 21. Even if a contact does exist, it must be for a fixed and definite period in order to overcome the at-will presumption. Mers, supra, paragraph one of the syllabus. Oral representations will alter the at-will employment relationship if the parties have a "meeting of the minds" that such representations are considered "valid contracts altering the terms for discharge." Turner v. SPS Technologies, Inc. (June 4, 1987), Cuyahoga App. No. 51945. In order to satisfy this requirement, "[t]he parties must have a distinct and common intention which is communicated by each party to the other party." Cohen & Company v. Messina (1985), 24 Ohio App.3d 22, 24. Construing the facts in the light most favorable to appellant, and therefore assuming Robert Green told appellant that as long as appellant did his job, "there would be no problem," and that appellee did not "just fire people for no good reason," such statements are insufficient as a matter of law to support an implied contract. See, e.g., Lake v. Wolff Bros. Supply, Inc. (Nov. 10, 993), Cuyahoga App. No. 63959, unreported (summary judgment proper as to claim of breach of implied contract when employer said, "Don't worry. If you do this well, you will have this position forever.") Further, there was no "distinct and common intention which is communicated by each party to the other party" in the case sub -11- judice so as to show a meeting of the minds. Indeed, appellant admits that he "construed" such statements as creating an employment contract; however, he never communicated his understanding to Green. As a result, the evidence does not support a finding of an implied contract of employment. See Eagleye v. TRW, Inc. (Feb. 17, 1994), Cuyahoga App. No. 64662, unreported ("subjective belief cannot be a substitute for evidence of a specific promise of continued employment by the employer.") Appellant's second assignment of error is not well taken. E. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT AS TO APPELLANT'S INTENTIONAL INTERFERENCE WITH AN EMPLOYMENT RELATIONSHIP CLAIM. Generally, under Ohio law, an employee earning a living has a right to engage in such employment without unwarranted interference by a third person, and one who maliciously or wantonly procures the discharge of an employee is liable to the employee in an action for damages. Lancaster v. Hamburger (1904), 70 Ohio St. 156, 71 N.E. 289. See, also, Smith v. Klein (1985), 23 Ohio App.3d 146, 492 N.E.2d 852. However, this right of noninterference is limited since there are certain people whose own position allows them to so intrude. Thus, the Ohio Supreme Court held that an employee did not have a cause of action for tortious interference with her employment relationship when the interfering person was her supervisor, acting within the scope of the supervisor's duties. Anderson v. Minter (1972), 32 Ohio St.2d 207. The court stated, where "the act complained of -12- is within the scope of a defendant's duties, a cause of action in tort for monetary damages does not lie." Id. at 214. Lower courts of appeals have interpreted Anderson differently. Some appeals courts allow such a cause of action against a supervisor, but only when the interfering acts took place outside of the employment arena. See, e.g., Moses v. Budd Co. (Dec. 3, 1993), Wood App. No. 92WD041, unreported; Nelson v. Akron (Oct. 31, 1990), Summit App. No. 14605, unreported. In contrast, this court has unequivocally stated that, "a supervisor of an employee cannot be held liable for tortious interference with contract." Everhart v. Francioli (Apr. 29, 1993), Cuyahoga App. No. 62377, unreported. Appellant alleges that his own supervisor, defendant-appellee, Carl Page, District Manager for Wackenhut, interfered with appellant's employment relationship by blaming appellant for the problems created by Page's own violations of the law with regard to the Youngstown contract. As such, appellant's claim involves a suit by a subordinate employee against a supervisor. Under the law of this district, no such action can lie. Accordingly, appellant's third assignment of error is not well taken. F. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT AS TO THE CLAIM FOR LIBEL. Appellant argues that appellee-Page defamed him by sending a copy of a letter dated April 29, 1992, which was directed to appellant, to Mr. Guastella. In such letter, appellee-Page intimated that appellant had intentionally attempted to prevent -13- appellee's ability to perform the Youngstown contract. Since all of the statements contained in the letter concerned matters of common business interest, and specifically, the activities of appellant within his employment status with appellee, and none were directed at appellant as an individual separate from his employment capacity, a qualified privilege covered such statements. Evely v. Carlon Co. (1983), 4 Ohio St.3d 163, 165. Accordingly, appellant bore the burden of demonstrating that such statements were made with "actual malice," or, that appellee Page acted with knowledge that the statements were false or acted with reckless disregard as to their truth or falsity. Jacobs v. Frank (1991), 60 Ohio St.3d 111, 116. Appellant has failed to produce sufficient evidence to show that appellee-Page either knew that the statements in the letter were false or that he acted with reckless disregard to their truth or falsity. In support of their position that the decision to discharge appellant was based upon a business judgment rather than ill will, a showing that would defeat an actual malice claim, see Evely, supra, appellees pointed out that appellee- Page's letter chronicled additional problems other than those with the Youngstown contract. Appellee-Page recited a series of business problems relating to appellant's performance. A mishandled incident with the provision of security guards for another client, and appellee- Page's general dissatisfaction with appellant's management and problem-solving skills also prompted the letter. These other -14- items tend to undermine arguments of actual malice. Appellant cites primarily to his own affidavit as support for his showing of actual malice, and this evidence is not sufficient to meet this stringent standard. Appellant's fourth assignment of error is not well taken. Judgment of the trial court is affirmed. -15- It is ordered that appellees recover of appellant their 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. HARPER, P.J. and PORTER, J., CONCUR. DAVID T. MATIA 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 .