COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67460 RONALD J. CSUHRAN : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION KAISER FOUNDATION HEALTH : PLAN OF OHIO : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION JUNE 8, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 226618 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: ALAN BELKIN, ESQ. DAVID L. PARHAM, ESQ. Shapiro, Turoff & Belkin THOMAS J. PIATAK, ESQ. 1200 Standard Building Thompson, Hine & Flory 1370 Ontario Street 1100 National City Bank Bldg. Cleveland, Ohio 44113 629 Euclid Avenue Cleveland, Ohio 44114 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Ronald J. Csuhran appeals from the summary judgment granted by the trial court in favor of defendant-appellee Kaiser Foundation Health Plan of Ohio on plaintiff's wrongful discharge claim. Plaintiff contends the court erred in that a provision of defendant's internal policies handbook required graduated disciplinary procedures before his employment could be terminated. We find no error in the result below and affirm. Kaiser hired Csuhran in 1983 as a Repairman II for its Cleveland Medical Center, which consists of the Fairhill and Martin Luther King, Jr. facilities. Csuhran's final position with Kaiser was as Acting Supervisor of Plant Operations, a position he held from February 1989 until he resigned on October 12, 1990. Csuhran's performance as supervisor of plant operations was not without criticism. In April 1990, he received a negative job evaluation, which he recognized was serious and that his job performance needed to improve within six months. The chief criticisms were that the Fairhill facility was in need of major repairs; that repairs were not being made in the required 72 hour period; that the employees under Csuhran's supervision had a high rate of absenteeism; and that there was a four percent variance in his department's non-wage expenditures with no supporting documentation. Csuhran conceded that these conditions were a problem in April 1990. - 3 - Despite these concerns, his job performance failed to improve over the next six months: the failure to perform the needed repairs at the Fairhill facility continued; he failed to meet his own timetable for the needed repairs; e.g., on June 7, 1990, he pledged to complete repairs by July 7, 1990 in five additional areas identified by a Kaiser physician; by August 22, 1990, none of these repairs had been completed; and he proposed a new series of completion dates to his superior. By October 4, 1990, he had completed only six of the thirteen remaining repairs at Fairhill, even though all of them were to have been completed by October 5. Plaintiff also had difficulties in his relations with Union Local 17 which was an important part of his job. Local 17 complained about his giving 1,300 hours of mechanical standby time to a certain painter, rather than spreading that time among all eligible union members and that he failed to fill open positions in a timely fashion. His relationship with the medical facility administrator broke down because of his poor response time. The administrator complained about his failure to conduct promised environmental inspections. Other Kaiser employees complained about his failure to install promised signs in the human resources department and his removal of trees at one of the Kaiser facilities. Csuhran admitted knowledge of these complaints and that they were based on his actions or inaction. - 4 - In October 1990, Csuhran again received a negative performance evaluation. He knew from the April evaluation that his performance had to improve, but that it had not. He acknowledged that he had failed to correct several of the deficiencies noted on his earlier evaluation, including his failure to repair the Fairhill building in a timely fashion. After receiving this second negative evaluation, Csuhran was given the choice of termination or resignation with benefits and wages until the end of the month. 1 Csuhran chose to resign on October 12, 1990. Following his resignation, Csuhran initiated an appeal under Kaiser's employee appeal process. His termination was upheld after he completed all six levels of the Kaiser appeal process with the assistance of an attorney. Csuhran testified that none of Kaiser's employment policies, including those relied on by him during the appeal process and Kaiser Policy No. 402 (on which he places substantial reliance herein), required Kaiser to have just cause for terminating an employee. Csuhran also admitted that Kaiser's disciplinary procedures, including Policy No. 402, were not exhaustive and that Kaiser could terminate an employee without any prior discipline for poor performance. Csuhran also testified on deposition that he never received a copy of Kaiser Policy No. 402; that Policy No. 402 was intended 1 Defendant, in its motion for summary judgment, stated "For purposes of this motion only, Defendant will treat the termination of Csuhran's employment as a discharge rather than a voluntary resignation." For sake of argument, we will assume the same. - 5 - only for internal use by Kaiser supervisors; that he was unsure as to when he first became aware of Policy No. 402; and Policy No. 402 was never raised during the six-step Kaiser appeal process. Csuhran stated in his deposition that he believed Kaiser regarded him as having both a job performance problem and a disciplinary problem, but he agreed that Kaiser's criticism of him all related to substandard job performance. Plaintiff's immediate superiors testified that Kaiser Policy No. 402 was used for employees with disciplinary problems, not job performance problems. Following the submission of Kaiser's motion for summary judgment supported by deposition transcripts, affidavits, copies of plaintiff's job review documents, and plaintiff's opposition, on May 27, 1994, the trial court granted summary judgment in favor of Kaiser without opinion. This timely appeal ensued. Plaintiff's sole assignment of error states as follows: PLAINTIFF-APPELLANT PRESENTED EVIDENCE SUPPORTING ALL ESSENTIAL ELEMENTS OF HIS CLAIM THAT PLAINTIFF-APPELLANT WAS NOT AN "EMPLOYEE AT WILL" AND WAS FIRED IN CONTRAVENTION OF BINDING EMPLOYER POLICY. THEREFORE THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE. Plaintiff essentially argues that he was not an employee at- will because he was entitled to the benefit of the four disciplinary stages of Policy No. 402 before discharge. In other words, plaintiff claims he had an implied contract of employment assuring that he would not be discharged without application of - 6 - Policy No. 402 even for poor performance. We disagree with plaintiff's reading of Kaiser Policy No. 402. Plaintiff had no written contract of employment, nor did he assert an oral contract of employment for any specific term. It is well-settled that Ohio adheres to the doctrine of at-will employment. Brzozowski v. Stouffer Hotel Co. (1989), 64 Ohio App.3d 540, 543. Pursuant to that doctrine, either party may terminate the employment relationship for any reason not contrary to law. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, paragraph one of syllabus. Furthermore, in the area of employment contracts, there exists "a strong presumption in favor of a contract terminable at-will unless the terms of the contract or other circumstances clearly manifest the parties' intent to bind each other." Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249, 255; Priebe v. O'Malley (1993), 89 Ohio App.3d 8, 12. Consistent with the presumption of at-will employment, it is recognized that "the party asserting an implied contract of employment has a heavy burden. He must prove the existence of each element necessary to the formation of a contract." Penwell v. Amherst Hospital (1992), 84 Ohio App.3d 16, 21; Rudy v. Loral Defense Sys. (1993), 85 Ohio App.3d 148, 152; Priebe, supra at 12. Therefore, plaintiff must show a "meeting of the minds" of the parties that the employment was other than at-will. Schwartz v. Comcorp., Inc. (1993), 91 Ohio App.3d 639, 647; Cohen & Co. v. - 7 - Messina (1985), 24 Ohio App.3d 22, 24; Turner v. SPS Technologies (June 4, 1987), Cuyahoga App. No. 51945, unreported at 5. Plaintiff 's claim requires that the mutual assent necessary to alter his at-will employment status was established by Kaiser Policy No. 402, which required four disciplinary steps prior to discharge. However, the undisputed facts of this case establish that there was never the requisite "meeting of the minds" to transform Kaiser Policy No. 402 into an employment contract. Csuhran's own testimony conceded that: Kaiser retained the right to unilaterally change its policies and procedures; Policy No. 402 was never given to Kaiser employees and was intended only for internal use by Kaiser supervisors; Csuhran never received a copy of Policy No. 402; he was not aware of Kaiser's policies and procedures manual until 1990, over seven years after he became employed by Kaiser; he was unsure when he first became aware of Policy No. 402; Policy No. 402 was not mentioned when Csuhran was hired or promoted by Kaiser and he never raised the policy during the six steps of Kaiser's employee appeal process; he was unaware of the procedures used by Kaiser in terminating employees; the disciplinary procedures contained in Policy No. 402 were not exhaustive and termination for poor job performance without any prior discipline was consistent with the policy; and Policy No. 402 did not limit Kaiser's ability to terminate any employee without just cause. - 8 - Csuhran presented no evidence to contradict these admissions in his deposition. Kaiser Policy No. 402 did not constitute an implied employment contract with plaintiff. See, e.g., Clipson v. Schlessman (1993) 89 Ohio App.3d 230, 234 (employee manual not a contract where, as here, it contained no promise of continued employment and employer had right to modify handbook); Gargasz v. Nordson Corp. (1991), 68 Ohio App.3d 149, 155 (employee manual not a contract where, as here, employee did know whether the procedures in the manual applied to other employees, employee was unsure as to when he became aware of the manual, and the employee did not discuss manual with his supervisors); Mason v. United States Fidelity & Guaranty Co. (1990), 69 Ohio App.3d 309, 315 (employee handbook not a contract where, as here, it was distributed only to supervisors and not to all employees); Brandenburger v. Hilti, Inc. (1989), 52 Ohio App.3d 21, 25 (employee handbook not a contract where, as here, employee never received a copy of the handbook, the handbook did not contain an attestation clause, and the employee was never told he could be terminated only for cause); Curak v. Cleveland Clinic Foundation (Dec. 22, 1988), Cuyahoga App. No. 54822, unreported at 10 (employee handbook not a contract where, as here, employee did not discuss handbook at the time of hire, the employer retained the right to make changes to the handbook, and the handbook did not contain an attestation clause); Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 24-25 (employee handbook not a contract where, as here, employee not aware of handbook until after - 9 - his employment began, the employer retained the right to change the handbook and handbook did not contain an attestation clause). Even assuming arguendo that Csuhran was correct in asserting that Policy No. 402 was part of an implied employment contract, he presented no evidence that this policy was applicable to his termination. Both his superiors testified in these affidavits and depositions that it was not applicable. They testified that Csuhran was terminated because he had a job performance problem and not because he had a disciplinary problem. They also testified that Kaiser Policy No. 402 was applicable to disciplinary problems, but not poor performance situations. Csuhran himself was aware of the distinction between employees with disciplinary problems and those with job performance problems made by his superiors: Q. Ron, you're aware of the difference between an employee with a discipline problem and an employee who has a performance problem, correct? A. That's correct. Q. And an employee with a discipline problem is someone who is violating specific work rules, an employee with a performance problem is someone who is not necessarily violating certain work rules but is not living up to the expectations, the job expectations of supervisors, is that an accurate statement? A. That's correct. (Depo. at 193). He testified that he believed Kaiser regarded him as having both a performance and discipline problem; however, he admitted that the - 10 - problems Kaiser complained of all dealt with his substandard job performance and not a violation of any work rules. A review of Policy No. 402 indicates that it is aimed at correcting employee misconduct or misbehavior that warrants attention. "Discipline may begin at any step in the procedure depending upon the seriousness of the offense committed ***." The form used to record disciplinary activities (Employee Performance Memo) recites that "on this form shall be recorded especially meritorious performance by any employee, and any action of misconduct which justifies discipline or which, if repeated, justifies future disciplinary action." Neither the policy language nor the specific disciplinary steps itemized are directed at deficient job performance which was the cause of plaintiff's discharge. When confronted with defendant's motion for summary judgment cataloguing the documented instances of dissatisfaction with plaintiff's performance level, the burden was upon plaintiff to come forward with affidavits or other acceptable forms of admissible evidence to contradict or rebut the employer's history of dissatisfaction with his work. Wing v. Anchor Media (1991), 59 Ohio St.3d 108, 111. Plaintiff has failed to offer any competent and probative evidence to offset the history of deficiencies in the level of his performance and his failure to meet his employer's legitimate expectations. - 11 - Based on the record before us, we find that Kaiser Policy No. 402 did not create an implied contract of employment in favor of plaintiff; that there were no circumstances to vary the terms of his at-will employment; and that he was discharged for good cause in failing to meet his employer's legitimate expectations in the performance of his work. Summary judgment for the employer was appropriate. Plaintiff's sole assignment of error is overruled. Judgment affirmed. - 12 - 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. HARPER, P.J., and DAVID T. MATIA, J., CONCUR. JAMES M. PORTER 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 .