COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67507 CHARLES HIGHLAND : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION KAYBEE STORES, INC. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-249332 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JAMES M. LYONS, ESQ. BENNET D. ALSHER, ESQ. 204 Third Street CLARK, PAUL, HOOVER & MALLARD Fairport Harbor, Ohio 44077 One Midtown Plaza, Suite 900 1360 Peachtree Street, N.E. Atlanta, Georgia 30309-3214 KEITH L. PRYATEL, ESQ. MILLISOR & NOBIL 9150 South Hills Blvd. Cleveland, Ohio 44147-3599 - 2 - DYKE, J.: Plaintiff-Appellant, Charles Highland, appeals an award of summary judgment granted in favor of his former employer, defendant-appellee, Kaybee Stores Inc., in his action for wrongful termination. Appellant claims that the trial court erred in granting summary judgment because genuine issues of material fact remain with respect to whether appellee breached an implied oral contract for employment based upon promissory estoppel and whether appellee intentionally inflicted emotional distress upon the appellant when it discharged him. Upon review, we find appellant's assignment of error to be without merit. The judgment of the trial court is affirmed. Appellee hired appellant as a part-time clerk/cashier at its Euclid store on October 24, 1988 and instructed him to read a copy of its employee manual. On August 13, 1991, appellant, who had been promoted to the position of Assistant Manager, was transferred to appellee's Severance Mall store. During the latter part of August, a newly-hired sales associate, Lisa Carpenter, commenced employment at the store. On September 2, 1991, Ms. Carpenter registered a formal complaint against the appellant for sexual harassment with the store manager. On September 3, 1991, appellee interviewed the appellant regarding the complaint. Appellant admitted that he had sexually oriented conversations with Ms. Carpenter during work hours and that he had propositioned her. (Affidavit, J. Brookshire, - 3 - Appellee's District Sales Manager) Appellee issued a corrective notice and termination form to the appellant requesting that he sign both thereby discharging him from employment. On March 11, 1992, appellant filed a complaint, dismissing same on August 19, 1992. On March 24, 1993, appellant refiled the complaint, amending same on August 18, 1993. In his complaint, appellant alleged breach of an implied oral contract based upon promissory estoppel, intentional infliction of emotional distress and defamation. The defamation claim was voluntarily dismissed on January 18, 1994. On June 1, 1994, after oral argument, the trial court granted summary judgment in favor of the appellee and the instant appeal followed. I WHETHER OR NOT THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT FOR THE DEFENDANT-APPELLEE AND AGAINST THE PLAINTIFF-APPELLANT. Summary judgment is proper, pursuant to Civ.R. 56(B) 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 conclu- sion 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, 4 O.O.3d 466, 472, 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. Once summary proceedings have been properly initiated, the responding party must - 4 - set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(D); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id.477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. See, Manofsky v. Goodyear Tire & Rubber Co. (Summit, 1990), 69 Ohio App.3d 663, 666. Absent an express contract of employment, the Supreme Court of Ohio has established the continued existence of the employment-at- will doctrine which provides that either the employer or the employee may terminate an employment relationship for any reason which is not contrary to law. Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228; Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St. 3d 131, Mers v. Dispatch Printing Co. (1985) 19 Ohio St.3d 100, Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249. Two narrow exceptions exist to the employment at will doctrine; 1) an implied contract which alters the terms of the original employment-at-will relationship and 2) the doctrine of promissory estoppel. Mers v. Dispatch Printing Co., supra. The employment application executed by the appellant provides as follows: If I am employed by Kay-Bee Toy and Hobby Shops, Inc., I agree, in consideration of my employment and compensation, that in the absence of an applicable written contract to the contrary, my - 5 - employment may be terminated at any time, by me or the Company, under any circumstances and for any reason, provided said reason does not violate any applicable federal or state fair employment practice statute. (Exhibit A, Appellant's Deposition) Hence, it is clear that the appellant was hired as an employee- at-will. However, in opposing summary judgment appellant argued that two conversations he had with Tammy Thompson, appellee's then- district sales manager and one conversation he had with her 1 successor, Jeff Brookshire, formed the basis of an implied oral contract which removed his employment relationship from the area of employment-at-will. Appellant claims that in inviting him to consider full-time employment, appellee made promises about his future and represented that he could learn everything he needed to know by working for Kaybee Inc. rather than going to college. Appellant bases his claim on the following conversations: (Deposition Question by Appellant's counsel) Q. Okay. Now, earlier you told me that she made some statements, and I don't want to put words in your mouth, so can you just tell me what she said relative to your job at Kay-Bee that you feel is a basis for your case here? A. Basically before I started working full-time we talked. You know, she wanted me to take the job, 1 Appellant also alleged that Brookshire encouraged him to work in lieu of going to college. However, in his affidavit Brookshire stated that when the appellant told him that he wanted to take a college course at night, he simply reminded him that a full-time assistant manager's position would require a flexible schedule in order to respond to emergency situations and to be available for longer business hours during the holiday season. - 6 - and she told me and my mother both, because my mother was kind of leery about it, if -- if I took the job, you know, could I still go to school, could I go to college and she said well, I didn't have to go, I didn't have to because I could get all my training through Kay-Bee and move up the corporate ladder through Kay-Bee and just stay right there. Q. She said she didn't have to -- she said you didn't have to? A. I didn't have to go to school. She said I could get my business degree through Kay-Bee. Q. Meaning Kay-Bee would pay for your schooling? A. Not -- no. She just said basically I'd get all my training through them, that, you know, I could just get my training through them, and then -- I mean, she basically meant to take [sic] -- you know, I could take the test and just pass the test after I got my training through Kay-Bee. And she said I could make a career out of Kay-bee and not have to worry. Q. You said she said this in a conversation with you and your mother? A. She also told my mother too. Q. Oh, separate conversations? A. No -- well, yes. The first one was that, and then the second one was basically the same thing with me and her standing outside the back room door, we were all talking. Q. When was this conversation, sometime before you went to full-time? A. Right. I'd have to say about two weeks before I went full-time. Q. What -- what did you say, if anything? A. Well, it sounded good to me. I mean, you know, I wouldn't have to go through all that schooling and stuff. And she -- you know, she told me exactly what I'd be making and everything else and, you - 7 - know, I figured on taking the job. That's why I asked my mom about it, you know, and she came down and talked to Tammy. (Appellant's depo. pp 52-54) Appellant claims that Ms. Thompson made another promise of employment during the following conversation which took place while he was working full-time and considering the purchase of a car. A. Okay. Around -- around August when I had my -- I guess it was my conference, you know, when she talked and told, you know, how well we were doing, how well I was doing in the store and everything, we talked and, you know, she said -- you know, and she -- she asked me how I was -- how I liked everything, how things were going. And I said "Oh, you know, I like it" and everything else. And then she -- you know, she just asked me -- or she told me how she felt I was doing in the store, how Joe felt I was doing. And then I asked her, I said, "Well," you know, "I'm looking to buy a new car," and whatnot. And I asked her, you know, I said, "Well how secure am I? I want to make sure before I go out and do this, that I'm doing good in the store," you know, I'll be all right. She said, "Oh, you're doing" -- you know, "You're doing awesome," you know, "you have nothing to worry about." She said, "I want to see you get up there" and everything. I said, "All right. I'm taking your word for it." She said, "Okay." (Appellant's Depo. pp 55-56) In Mers, supra, it was held that in certain limited instances, oral representations may evidence the existence of an independently enforceable contract for employment. Id., at 103. However, to rebut the presumption of employment-at-will, the - 8 - promises alleged must be "clear and unambiguous" in their terms. Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656, 660 citing Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 26. "Standing alone, praise with respect to job performance and discussion of future career development will not modify the employment-at-will relationship." Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, paragraph three of the syllabus. The conversations cited by the appellant fail to demonstrate "clear and unambiguous promises" of employment pursuant to Shaw, supra. They also fail to demonstrate any basis for justifiable reliance to one's detriment. Accordingly, reasonable minds can come to but one conclusion and that is that appellant failed to prove the existence of an implied oral contract of employment based upon promissory estoppel. Hence, the trial court did not err in granting summary judgment on this claim. In reviewing appellant's intentional infliction of emotional distress claim, we also find no error in the court's award. Appellant claimed that appellee's termination process was "humiliating, embarrassing and beyond the bounds of decency." (Appellant's Amended Complaint, Paragraph 3) Appellant claimed that appellee failed to properly investigate the matter and failed to provide him with a proper forum to clear himself. We find such claims to be unsupported by the record. In his affidavit, appellee's district sales manager, Jeff Brookshire stated that on September 2, 1991, he received a call - 9 - from the Severance Store's general manager indicating Ms. Carpenter's complaint. He averred that he asked to have Ms. Carpenter put on the phone immediately; that Ms. Carpenter told him that the subject of sex came up while she and the appellant were discussing their respective boyfriend and girlfriend; that the appellant subsequently made repeated remarks to the effect that if he had sex with her he would "break" her because she was so thin and that thereafter he propositioned her for sex "no strings attached". Brookshire averred that on the following day he interviewed the appellant who admitted to the specific, above- cited conduct and that he issued a corrective warning which appellant signed and a termination form for violating appellee's sexual harassment policies which appellant reluctantly signed. While appellant claims that appellee should have provided him with a proper forum to "clear himself" (Appellant's Brief, pg. 19) the record demonstrates that he admitted the prohibited conduct and also admitted that both, he and Ms. Carpenter, were interviewed prior to his discharge. (Appellant's Depo. pp 95-96) We find that appellant was on notice with respect to appellee's sexual harassment policies (Appellant's Depo. 61) and that reasonable minds could come but to one conclusion and that is that appellee's questioning and issuance of warning and termination forms for violation of these policies did not rise to a level of extreme and outrageous behavior. See, Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369. - 10 - The trial court did not err in granting summary judgment on appellant's intentional infliction of emotional distress claim. Appellant's sole assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. - 11 - 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, P.J., AND DAVID T. MATIA, 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. .