COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67586 REBECCA L. CORRADI : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION IVAN SOCLOF, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION MAY 25, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 254942 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: MARC N. SILBERMAN, ESQ. THOMAS H. BARNARD, ESQ. Commerce Park Place Ulmer & Berne 24700 Chagrin Boulevard Bond Court Bldg., Suite 900 Suite 200 1300 East Ninth Street Cleveland, Ohio 44122 Cleveland, Ohio 44114-1583 - 2 - JAMES M. PORTER, P.J., Plaintiff-appellant Rebecca L. Corradi appeals from the summary judgment granted by the trial court in favor of defendants- appellees on her wrongful discharge claim. Plaintiff contends that material issues of disputed fact precluded summary judgment on her claims of breach of an implied contract of employment and promissory estoppel. Plaintiff has abandoned her claim of intentional infliction of emotional distress. We find no error in the grant of summary judgment below and affirm. Defendant EMMCO Corporation is a real estate property management company that operates the Columbus Park Apartments in Bedford Heights, Ohio for which plaintiff acted as Property Manager. Plaintiff was employed by defendant from November 21, 1988 to her discharge on January 15, 1991. As Property Manager, plaintiff was responsible for collecting and processing rent payments, resolving tenant complaints and supervising and coordinating the housekeeping and maintenance staffs and repair projects. Plaintiff had no written employment contract, nor was her employment governed by any written employee handbook, personnel manual or written personnel policies. On January 15, 1991, plaintiff's immediate supervisor, David Heffelman, Director of Residential Properties for EMMCO, informed appellant of her termination in a private meeting. Heffelman explained that "EMMCO had decided to make a management change." He - 3 - invited her to "resign and receive a good letter of recommendation or be fired and take her chances." No other reason for termination was given at that time. Plaintiff declined to resign and was fired. However, in a "termination report" by Heffelman after the discharge, he listed "incompetence" as the reason for the discharge. Plaintiff testified on deposition that her breach of implied contract and promissory estoppel claims were based on an alleged oral representation by defendant, Ivan Soclof, President of EMMCO. At a meeting held between Soclof, Heffelman and plaintiff on August 24, 1994, Soclof commended plaintiff's performance and stated "I have big plans for you." That comment was a relief to plaintiff because it followed an earlier confrontation with Heffelman. On August 20, 1990, a heated discussion took place between plaintiff and Heffelman after he removed her personal effects from her office while she was on vacation. In the course of the August 20 confrontation, Heffelman said "I can have you fired" and she said "Go ahead." Plaintiff also testified that Soclof never criticized her performance; that she planned Columbus Park's 1990 staff Christmas party; and that she received a bonus at the end of 1990 prior to her discharge. Plaintiff's affidavit below opposing summary judgment also alleged that on or about October 21, 1990 she became aware of a newspaper advertisement seeking a property manager for the Columbus Park complex. She brought this advertisement to Heffelman's - 4 - attention and asked him "Should I look for another job." Heffelman stated "no" and advised her that her job was secure and that there was no need for her to look for other employment. (Corradi Aff. p. 3). On June 15, 1994, after extensive briefing, the trial court entered summary judgment for defendants on all plaintiff's claims. The trial court in its half sheet journal entry held: Defendant's Motion for Summary Judgment is hereby granted on each count of plaintiff's complaint. It is the opinion of this court that after reviewing plaintiff's affidavit and plaintiff's deposition testimony that no issue of material fact exists in this case and these defendants are entitled to judgment as a matter of law. Furthermore, the Court finds that defendant Ivan Soclof's alleged "big plans" statement to plaintiff does not support the first required element to maintain a promissory estoppel claim, i.e., there must be a promise, clear and unambiguous in its terms. Cohen Co. v. Messina (1985), 24 Ohio App.3d 22 and Eagleye v. TRW, Inc., Case No. 64662 (Cuyahoga Cty. Ct. App. 2-17-94). A timely appeal ensued. We will address plaintiff's four assignments of error together because they are interrelated. I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLANT BY GRANTING SUMMARY JUDGMENT ON BEHALF OF DEFENDANT- APPELLEES WHERE NUMEROUS ISSUES OF MATERIAL FACT WERE OUTSTANDING AND WHERE APPELLEES WERE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. II. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY DENYING HER CLAIM AGAINST DEFENDANT-APPELLEES FOR BREACH OF IMPLIED CONTRACT BY TERMINATING APPELLANT FROM HER EMPLOYMENT POSITION. - 5 - III. THE TRIAL COURT ERRED BY DISMISSING PLAINTIFF- APPELLANT'S CLAIM OF PROMISSORY ESTOPPEL AGAINST DEFENDANT-APPELLEES BY TERMINATING HER EMPLOYMENT POSITION WHEN SHE HAD DETRIMENTALLY RELIED ON APPELLEES REPRESENTATIONS CONCERNING HER CONTINUED FUTURE EMPLOYMENT. IV. THE TRIAL COURT ERRED TO APPELLANT'S SUBSTANTIAL PREJUDICE AS THE CURRENT STATUS OF THE LAW AS INTERPRETED BY THE TRIAL COURT WOULD PREVENT PLAINTIFF-APPELLANT OR ANY SIMILARLY SITUATED CLAIMANT FROM OBTAINING RELIEF PURSUANT TO CLAIMS FOR WRONGFUL TERMINATION UNDER AN IMPLIED CONTRACT OR PROMISSORY ESTOPPEL THEORY. The essence of plaintiff's contentions is that there were genuine issues of material fact which precluded an award of summary judgment on her implied contract and promissory estoppel claims. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, paragraph three of syllabus; Allen Freight Lines, Inc. v. Consolidated Rail Corp. (1992), 64 Ohio St.3d 274, 278. A plaintiff's failure to establish an essential element of his claim requires that summary judgment be entered against him. DeBose v. City of Cleveland (July 26, 1990), Cuyahoga App. No. 59025, unreported at 4. This Court, citing Celotex v. Catrett (1986), 477 U.S. 317, has held: In Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323-324, 106 S.Ct. 2548, 2552-2553, 91 L. Ed.2d 265, 273-274, the United States Supreme Court held that the plain language of the summary judgment rule mandates the entry of summary judgment, after adequate time for discovery, and upon motion, against a party who fails to make a showing sufficient to establish - 6 - the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552, 91 L. Ed.2d at 273. In such a situation, there can be no "genuine issue as to any material fact," since a complete failure of proof concerning an essential element of a non- moving party's case necessarily renders all other facts immaterial. Id. Toensing v. MK-Ferguson Co. (1992), 76 Ohio App.3d 826, 830. See, also, Brown v. University Hosp. (June 7, 1990), Cuyahoga App. No. 57101, unreported; Wildenthaler v. Mauk (July 18, 1991), Cuyahoga App. No. 61127, unreported. We review the trial court's grant of summary judgment de novo since the matter is one of law. Plaintiff had no written contract of employment, nor did she 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. 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. 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. In recent years, the Ohio Supreme Court has carved out three exceptions to the employment-at-will doctrine: implied contracts, - 7 - promissory estoppel, and tortious wrongful discharge in violation of public policy. See Mers, supra; and Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228. On appeal, plaintiff relies on a claim of implied contract and promissory estoppel to pursue her claim of wrongful discharge. We find that she did not present sufficient evidence to raise material issues of fact in support of either claim. Consistent with the presumption of at-will employment, it is recognized that "the party asserting an implied contract of employment has a heavy burden. [She] 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; Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 24; Turner v. SPS Technologies (June 4, 1987), Cuyahoga App. No. 51945, unreported. Plaintiff argues that mutual assent to alter her at-will employment status was established by: (1) President Soclof's statement that "I have big plans for you;" (2) her allegation that Heffelman responded "no" to appellant's inquiry whether she "should look for another job" following Heffelman's running of a newspaper advertisement for a property manager; and (3) various statements of job praise and her receipt of a year end bonus the month prior to - 8 - her termination. None of these allegations are sufficient as a matter of law to establish an implied contract. Statements praising job performance or promising career advancement opportunities do not alter an at-will status. The Supreme Court of Ohio held in Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, paragraph three of syllabus: Standing alone, praise with respect to job performance and discussion of future career development will not modify the employment-at- will relationship. This Court has repeatedly followed this rule in LoPresti v. TransOhio Savings Bank (June 4, 1992), Cuyahoga App. No. 60667, unreported (employer's statements that the plaintiff was a valuable employee, coupled with regular salary raises, positive performance evaluations and participation in the Executive Incentive Plan did not establish an implied contract altering the employee's at-will status); Lake v. Wolff Bros. Supply, Inc. (Nov. 10, 1993), Cuyahoga App. No. 63959, unreported (summary judgment for employer affirmed despite promises of career advancement opportunities and being told that he would have a position forever); Condon v. Body, Vickers, Daniels (Nov. 23, 1994), Cuyahoga App. No. 66542, unreported (favorable comments concerning attorney's job performance and that he should not be concerned when the firm hired two new associates because everyone was wanted at the firm insufficient as a matter of law to imply an employment contract of a specific duration); Dahl Cutshaw v. Allen Bradely Company (Dec. 1, 1994), Cuyahoga App. No. - 9 - 66508, unreported (favorable comments concerning job position in regards to budget insufficient); Demczyk v. Innkeeper's Telemanagement & Equipment Corp. (Aug. 18, 1994), Cuyahoga App. No. 65953, unreported (salary based on annual sales insufficient to constitute reliance on year long employment). Other appellate decisions have similarly refused to alter an employee's at-will status in the face of strong statements of career advancement. Healey v. Republic Powdered Metals, Inc. (1992), 85 Ohio App.3d 281 (statements praising employee's work in the past and speculating that he would be the first employee to work for the company for 50 years were insufficient to overcome employer's motion for summary judgment); Peters v. Mansfield Screw Machine Products Co. (1991), 73 Ohio App.3d 197 (statements by company president that plaintiff would have a job as long as the president was working for the company did not establish an express or implied contract of employment); Boggs v. Avon Products, Inc. (1990), 56 Ohio App.3d 67 (summary judgment for employer upheld; assurances that employee's job was secure as long as he improved his attendance and followed the employer's attendance requirements did not establish an implied contract of a specific duration); Clipson v. Schlessman (1993), 89 Ohio App.3d 230 (statements praising employee's performance and assurance that he "would never have to worry about his job," did not evidence a specific promise of future employment as a matter of law). - 10 - Soclof's promise of "big plans for you" or Heffelman's "do not worry about your job" assurance do not take the place of the essentials necessary for an implied employment contract. It is a fundamental tenet of Ohio employment law that, in the absence of evidence of an agreement for a specified term, at-will employment status prevails: In the absence of facts and circumstances which indicate that the agreement is for a specific term, an employment contract which provided for annual rate of compensation, but makes no provision as to the duration of the employment, is not a contract for one year, but is terminable at-will by either party. Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249, syllabus; Lowry-Greene v. Brighton Hotel Corp. (Aug. 20, 1992), Cuyahoga App. No. 60838, unreported (absent statement regarding duration of employment, a letter that summarized the employee's salary, signing bonus, insurance, automobile allowance, vacation schedule and expenses did not constitute an implied contract of employment). See, also, Kiel V. Circuit Design Technology, Inc. (1988), 55 Ohio App.3d 63, 65; Kuhn v. St. John & West Shore Hosp. (1989), 50 Ohio App.3d 23, 24; Demczyk, supra. We find that plaintiff's evidence did not present sufficient proof to allow a reasonable person to conclude that there was an implied contract of employment for any specific term. The essential elements of a promissory estoppel claim are: "[1] *** a promise, clear and unambiguous in its terms [2] reliance by the party to whom the promise is made [3] the reliance must be - 11 - reasonable and forseable [4] *** the party claiming estoppel must be injured by the reliance." Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 26; Kiel v. Circuit Design Technology, Inc. (1988), 55 Ohio App.3d 63, 67. The employee must demonstrate that she received a specific promise of continued employment upon which she relied to her detriment. As previously noted, in Wing v. Anchor Media Ltd. of Texas, paragraph two of syllabus, it was held: A promise of future benefits or opportunities without a specific promise of continued employment does not support a promissory estoppel exception to the employment-at-will doctrine. Bellian v. Bicron Corp. (1994), 69 Ohio St.3d 517, 521 ("Also, [appellant's] claim of promissory estoppel fails, as appellant has proven no promise of job security"). This Court has confirmed that "[p]romissory estoppel requires specific promises of job security, not merely promises of future benefits or opportunities ***. Without a specific promise of continued employment, there can be no detrimental reliance." LoPresti v. TransOhio Savings Bank, supra; see, also, Constantinescu v. Ferro Corp. (July 22, 1993), Cuyahoga App. No. 63193, unreported ("Appellant here was not promised job security; but was merely given assurances regarding future career development. This is not sufficient to establish a claim for wrongful discharge"); Rudy v. Loral Defense Systems (1993), 85 Ohio App.3d 148, 154 ("This Court has held that 'clear and unambiguous promises' must be specific promises of job security"). - 12 - In the instant case, plaintiff herself specifically confirmed that she received no specific promises of continued employment as her deposition made clear. Q. Okay. And other than making this statement, "I have big plans for you," Mr. Soclof didn't make any type of statement about you [sic] would be employed for any specific period of time? A. No. Q. He didn't make any promises that you would be employed for any specific duration of time? A. No. Q. Did he make any promise of permanent employment? A. No. Q. Did he make any statements that you would only be discharged under certain circumstances? A. No promises of any kind were made. The conclusory statement in plaintiff's affidavit that her job was secure from her October, 1990 conversation with Heffelman does not take the place of evidence. The statement is insufficient to create a genuine issue of fact and does not satisfy plaintiff's burden to respond to defendant's motion with evidence. Wing v. Anchor Media, Ltd. of Texas, supra; Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 51. Bare allegations stated in conclusory fashion in an affidavit are insufficient standing alone to create genuine issues of fact. James H. Washington Ins. v. Nationwide - 13 - Mutual (1993), 95 Ohio App.3d 577, 583; Stibora v. Greater Cleveland Bowling Assn. (1989), 63 Ohio App.3d 107, 113. Even if the Heffelman conversation is credited, Heffelman did not make any representations that plaintiff would be employed for a specific period of time. Consequently, Heffelman's response to plaintiff's question as to whether she should find another job does not constitute a clear and unambiguous promise of continued employment for a specific period as required by Ohio law. See Eagleye v. TRW, Inc. (Feb. 17, 1994), Cuyahoga App. No. 64662, unreported (summary judgment for employer affirmed when finding of no specific promise of continued employment where employee was told, "If you stick with me for three to five years, I will give you Kovicky's job"); Healey v. Republic Powdered Metals, Inc. (1992), 85 Ohio App.3d 281, 285 (summary judgment upheld where the statements on which the plaintiff's claim was based "did not specifically mention Healey's employment tenure"); Penwell, supra (summary judgment appropriate where plaintiff relies upon "nebulous representations" as opposed to specific promises). That plaintiff read these comments to promise job security does not support her argument. "Subjective belief cannot be a substitute for evidence of a specific promise of continued employment by the employer." Eagleye, supra; see, also, Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656 (employee's presumption that he was under contract for one year could not support promissory estoppel claim because - 14 - "presumptions are not 'specific facts' which may be reviewed on summary judgment"). Plaintiff also failed to establish detrimental reliance on such representations. Under Ohio's promissory estoppel doctrine, even if an employer makes a specific promise of continued employment, the employee still must establish that she "relied to [her] detriment on the unfulfilled promise." Eagleye, supra, at 3; Wing, 59 Ohio St.3d at 111. Here, appellant's only evidence of detrimental reliance is her allegation that she took "actions to commence her search for new employment [that] included preparation of a new resume and a review of the classified ads" following her heated discussion with Heffelman on August 20, but ceased this activity after the August 24 meeting with Soclof in which he allegedly uttered the "big plans" statement. (See Appellant's Brief at 13, 25; Corradi Aff. p. 3). However, this assertion squarely contradicts her sworn deposition testimony that she did not commence any type of job search prior to the August 24 meeting: Q. In what way did you decide to forbear from seeking new employment elsewhere? A. I didn't look for employment elsewhere. On the 20th I thought I would need to look for employment elsewhere. And I was planning, but I didn't actually sit down and send out a resume or fill out an application or look in the newspaper at the help wanted ads. - 15 - At no time following the August 24, 1990 meeting with Soclof and Heffelman did plaintiff: (1) look for another job; (2) send out any resumes; (3) send out any employment applications; (4) have any job interviews; or (5) otherwise make any attempt to seek alternative employment. (Corradi Dep. at 468-69). Plaintiff's testimony fails to show that the representations in question induced any affirmative acts or acts of forbearance on her part. This Court's recent decision in Marich v. Ameritrust Co. NA (June 30, 1994), Cuyahoga App. No. 66671, unreported sheds further light on defendants' claim of reliance: The only "detrimental reliance" allegedly involved here is that Marich did not look for employment elsewhere during his tenure as an employee of Ameritrust. However, he testified he knew that he could have looked for other employment but did not do so. "A plaintiff's bare assertion that he gave up 'opportunities at other employment' is insufficient to avoid summary judgment. Rather, a plaintiff must establish that he turned down other employment in reliance on a promise." Eagleye, supra at 9; see, also, Bennett v. Meyers Parking System, Inc. (Oct. 10, 1991), Cuyahoga App. No. 61574, unreported at 2. Id.; see, also, Wing, 59 Ohio App.3d at 111 ("Merely turning down other employment inquiries does not present a jury question of substantial detrimental reliance); McIntosh v. Roadway Express, Inc. (1994), 94 Ohio App.3d 195 (In rejecting claim that employee detrimentally relied on promise by "remaining at Roadway and ceasing his job search," the court held that "there are no specific examples in the record of any positions or jobs which appellant - 16 - passed over to remain at Roadway. Summary judgment was therefore appropriate in this regard"). Plaintiff has failed to demonstrate as a matter of law that she suffered from any detrimental reliance on any representations of job security. For the reasons hereinbefore given, the trial court properly granted summary judgment on plaintiff's implied contract and promissory estoppel claims. We find no evidence to take this case out of the at-will employment relationship. Plaintiff's assignments of error are overruled. Summary judgment for defendants affirmed. - 17 - 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 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. DYKE, J., and O'DONNELL, J., CONCUR. JAMES M. PORTER PRESIDING 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 .