COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67601 MARIE E. CULLY : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ST. AUGUSTINE MANOR, et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 20, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 260,854 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: MARIE E. CULLY, pro se 6917 Detroit #2 Cleveland, Ohio 44102 For defendant-appellees BETH A. SEBAUGH St. Augustine Manor, St. JEFFREY A. SCHENK Augustine Manor Corp., Attorneys at Law Catholic Charities of 800 Leader Building Cleveland and the Catholic Cleveland, Ohio 44114 Diocese of Cleveland : (Cont.) (Cont.) For defendant-appellee WILLIAM A. VISCOMI St. Alexis Hospital : TODD M. HAEMMERLE Attorneys at Law Seventh Floor, Bulkley Bldg. 1501 Euclid Avenue Cleveland, Ohio 44115 DONALD C. NUGENT, J.: This is an appeal from a final judgment of the Cuyahoga County Court of Common Pleas, which granted summary judgment in favor of the defendants-appellee, St. Augustine Manor, St. Augustine Manor Corporation, Catholic Charities of Cleveland, the Catholic Diocese of Cleveland and St. Alexis Hospital Association. Plaintiff- appellant, Marie E. Cully, raises the following assignments of error for our review: I. THE COURT ERRED IN NOT HOLDING THAT OHIO REVISED CODE 2305.19 APPLIES TO THIS SUIT TO EXTEND THE STATUTE OF LIMITATIONS UNTIL ONE YEAR AFTER THE FEDERAL COURT DISMISSAL ON JULY 23, 1993. II. THE COURT ERRED IN NOT HOLDING THAT RES JUDICATA DOES NOT APPLY FROM A PRIOR FEDERAL COURT JUDGMENT ON A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL TO BAR A SUBSEQUENT SUIT BASED ON 42 USC 2000E ET SEQ "TITLE VII" BROUGHT IN COMMON PLEAS. III. THE COURT ERRED IN NOT HOLDING THAT COMMON PLEAS COURT HAS JURISDICTION OVER THIS ACTION TIMELY FILED PURSUANT TO 4 USC 2000E ET SEQ. "TITLE VII." IV. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO ST. AUGUSTINE MANOR WHERE THE EVIDENCE ON FILE SHOWED A CAUSAL CONNECTION BETWEEN PLAINTIFF'S OPPOSITION TO PRACTICES UNLAWFUL UNDER TITLE VII AND THE RETALIATION OF ST. AUGUSTINE MANOR. V. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO ST. AUGUSTINE MANOR WHERE REASONABLE MINDS COULD DIFFER AS TO WHETHER PLAINTIFF RELIED ON THE PROMISES IN THE EMPLOYEE HANDBOOK TO HER DETRIMENT. - 4 - VI. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO CATHOLIC DIOCESE AND CATHOLIC CHARITIES WHERE THERE WAS CONFLICTING EVIDENCE AS TO THEIR CONTROL OVER ST. AUGUSTINE MANOR. VII. THE COURT ERRED IN REQUIRING PROOF OF PROFESSIONAL TREATMENT OF PLAINTIFF'S MENTAL HARM TO FORESTALL SUMMARY JUDGMENT. VIII. THE COURT ERRED IN DENYING PLAINTIFF'S PROTECTIVE ORDER AND GRANTING DEFENDANT'S MOTION TO COMPEL. IX. THE COURT ERRED IN DENYING PLAINTIFF'S MOTION TO COMPEL AND GRANTING PREMATURE SUMMARY JUDGMENT TO DEFENDANTS ON THE GROUNDS OF INSUFFICIENT EVIDENTIARY SUPPORT OF PLAINTIFF'S CLAIMS. I. Appellant initiated the present action through the filing of her complaint against appellees on November 8, 1993. This action arises out of an employment relationship between appellant and St. Alexis Hospital Association from June of 1986 to June of 1987 and between appellant and St. Augustine Manor from June of 1987 to April of 1992. In her complaint, appellant further alleged that St. Augustine Manor is substantially identical to or controlled by appellees St. Augustine Manor Corporation, Catholic Charities of Cleveland and the Catholic Diocese of Cleveland. Appellant's complaint attempts to set forth causes of action against appellees for (1) wrongful discharge in violation of public policy, breach of an implied contract and promissory estoppel; (2) retaliatory discharge; (3) sexual harassment and sexual - 5 - discrimination; (4) intentional infliction of emotional distress; and (5) conspiracy. All defendants duly answered, denying the substantive allegations of appellant's complaint. Following discovery, the trial court granted summary judgment in favor of each defendant. This timely appeal follows. II. Appellant's first and second assignments of error contest the trial court's decision granting summary judgment in favor of St. Alexis Hospital Association (hereinafter "St. Alexis"). Before the trial court, St. Alexis argued in its motion for summary judgment that appellant's claims were time barred by pertinent provisions of the statute of limitations; to-wit: R.C. 2305.07 and 2305.09. St. Alexis further argued that appellant's claims were barred by the doctrine of res judicata and collateral estoppel. A. In reviewing a summary judgment, an appellate court conducts a de novo review of the trial court's decision. "A court reviewing the granting of a summary judgment must follow the standards set forth in Civ.R. 56(C) ***." Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 814. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party - 6 - is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing 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. In reviewing a motion for summary judgment, the court must construe the evidence and all reasonable inferences drawn therefrom in a light most favorable to the party opposing the motion. Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45; Harless v. Willis Day Warehousing (1978), 54 Ohio St.2d 64. Because summary judgment represents a short-cut through the normal litigation process by avoiding trial, summary judgment must be awarded with caution, resolving all doubts in favor of the party opposing the motion. Viock v. Stowe-Woodward Co. (1983), 13 Ohio app.3d 7. The burden of establishing that no genuine issues to any material fact remain to be litigated is on the party moving for summary judgment. Turner v. Turner (1993), 67 Ohio St.3d 337, 340; Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 120. Once a party moves for summary judgment and has supported his or her motion by sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to respond by affidavit or as provided in Civ.R. 56(C), setting forth specific facts explaining that a genuine issue of material fact exists for trial. Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. A motion for summary judgment forces the nonmoving party to produce evidence on all - 7 - issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of syllabus (Celotex v. Catrett [1986], 477 U.S. 317, approved and followed). B. In its motion for summary judgment, St. Alexis argued that appellant's claims are time barred by pertinent provisions of Ohio's statute of limitations. Appellant's first assignment of error complains that the trial court erred in ruling that her claims were barred by the statute of limitations. In appellant's complaint, she alleged four causes of action against St. Alexis, including sexual harassment, wrongful discharge, conspiracy and intentional infliction of emotional distress. In support of its motion for summary judgment, St. Alexis attached the affidavit of Donald J. Vibbert, formerly the Manager of Pulmonary Disease Services for St. Alexis, who averred that St. Alexis employed appellant between June 16, 1986 and June 22, 1987. Mr. Vibbert further averred that subsequent to appellant's termination, St. Alexis has had no contact with appellant. Appellant does not dispute the dates of her employment with St. Alexis nor does she dispute that she has had no further contact with St. Alexis since the date of her termination. St. Alexis argued that appellant's claims for sexual harassment, conspiracy and intentional infliction of emotional - 8 - distress are governed by the four-year statute of limitations contained in R.C. 2305.09(D). We agree that a claim for intentional infliction of emotional distress is governed by the above statute. See, Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369; Bowling v. Brendamour's, Inc. (1988), 40 Ohio App.3d 37. Because St. Alexis last had contact with appellant in June of 1987, appellant's claim for intentional infliction of emotional distress should have been brought by June of 1991. Appellant did not bring the present action until November of 1993. Appellant's claim for intentional infliction of emotional distress is therefore barred by R.C. 2305.09(D). Next, we reject St. Alexis's contention that R.C. 2305.09(D) applies to appellant's claim for sexual harassment brought pursuant to 42 USC 2000e, Title VII. 42 USC 2000e-5(F)(1) provides for a ninety-day statute of limitations following receipt of a right to sue or dismissal notice from the Equal Employment Opportunity Commission. The record reveals that appellant was terminated in June of 1987. The record does not reveal when appellant received notice of dismissal from the EEOC; however, appellant did bring an action in federal court on April 27, 1988. That action was dismissed on July 22, 1993. Thus, appellant received notice of dismissal from the EEOC prior to April of 1988. The present action was not filed until November 8, 1993. Thus, appellant's claim for sexual harassment was barred by 42 USC 2000e-5(f)(1). - 9 - Even in construing appellant's sexual harassment claim liberally so as to include an independent state law action pursuant to R.C. 4112.99, the applicable six-year statute of limitations (the longest applicable statute of limitations for a discrimination claim) of R.C. 2305.07 would apply. Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc. (1994), 70 Ohio St.3d 281, syllabus. Applying R.C. 2305.07 to the instant sexual harassment claim reveals that appellant's claim for sexual harassment under R.C. 4112.99 should have been brought in June of 1993. Instead, appellant's complaint was filed on November 8, 1993. Thus, appellant's claim for sexual harassment, whether based on federal law or state law, is barred by the relevant statutes of limitations. St. Alexis next contends that appellant's claims for wrongful discharge, breach of implied contract and promissory estoppel are time barred by the six-year statute of limitations contained in R.C. 2305.07. We agree with St. Alexis and conclude that R.C. 2305.07 bars appellant's claim for breach of implied contract -- see, Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183; Henry v. Midwest Indus. (June 11, 1993), Huron App. No. 92-26-CVH, unreported -- and promissory estoppel. Id. However, appellant's claim for wrongful discharge is barred by the four-year statute of limitations found in R.C. 2305.09(D). Painter v. Graley (1992), 84 Ohio App.3d 65, 73, affd. (1994), 70 Ohio St.3d 377. - 10 - Finally, a claim for conspiracy cannot be made subject of a civil action unless something is done which, in the absence of the conspiracy allegation, would give rise to an independent cause of action. Katz v. Banniny (1992), 84 Ohio App.3d 543, 552; Palmer v. Westmeyer (1988), 48 Ohio App.3d 296, 300; and Stafford v. Greater Cleveland Regional Transit Auth. (Dec. 23, 2993), Cuyahoga App. Nos. 63663 and 65530, unreported. Thus, the applicable statute of limitations for the underlying cause of action applies to the civil conspiracy charge. As already seen, because all of appellant's underlying causes of action are barred by the relevant statute of limitations, so too is appellant's conspiracy claim. Appellant, through her first assignment of error, argues that the savings statute of R.C. 2305.19 applies to the instant action to extend the relevant statute of limitations one year after the federal court dismissal on July 23, 1993. Appellant's argument lacks merit. A review of the record reveals that appellant's federal lawsuit did not "fail otherwise than on the merits." See, Cero Realty Corp. v. American Mfgrs. Mut. Ins. Co. (1960), 171 Ohio St. 82. Appellant's claims against St. Alexis in the federal action were dismissed on summary judgment and were therefore a failure on the merits. Thus, R.C. 2305.19 does not apply, and the trial court properly granted St. Alexis summary judgment pursuant to the relevant statute of limitations. Appellant's first assignment of error is overruled. - 11 - C. In appellant's second assignment of error, appellant contends that the doctrine of res judicata does not apply from the prior federal court judgment on a cause of action for promissory estoppel to bar a subsequent suit brought in the common pleas court based on 42 USC 2000e et seq. St. Alexis argued that the prior federal judgment barred the instant claims. In support of its motion, St. Alexis attached appellant's complaint in federal court, the docket sheet and the memorandum and order dismissing appellant's complaint, including the order of the United States Court of Appeals for the Sixth Circuit affirming the district court's order. It is undisputed that appellant's complaint in federal court arose from the same employment relationship between appellant and St. Alexis of which the present action arises. In Joe Horisk's Salvage Pool Sys. of Ohio v. Strongsville (1993), 91 Ohio App.3d 121, 125-26, this court wrote: [2] The doctrine of res judicata "is that 'a final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of right, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them.'" Johnson's Island v. Danbury Twp. Bd. of Trustees (1982), 69 Ohio St.2d 241, 243, 23 O.O.3d 243, 244-245, 431 N.E.2d 672, 674, quoting Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67, paragraph one of the syllabus. As the Ohio Supreme Court recently explained: - 12 - It has long been the law of Ohio that "an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit." (Emphasis added.) Rogers v. Whitehall (1985), 25 Ohio St.3d 67, 69, 25 OBR 89, 90, 494 N.E.2d 1387, 1388. "[W]here a party is called upon to make good his cause of action ***, he must do so by all the proper means within his control, and if he fails in that respect ***, he will not afterward be permitted to deny the correctness of the determination, nor to re-litigate the same matters between the same parties." Covington & Cincinnati Bridge Co. v. Sargeant (1875), 27 Ohio St. 233, paragraph one of the syllabus. The doctrine of res judicata "encourages reliance on judicial decisions, bars vexatious litigation, and frees the court to resolve other disputes." Brown v. Felsen (1979), 442 U.S. 127, 131 [99 S.Ct. 2205, 2209, 60 L.Ed.2d 767, 771]. "Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if *** conclusiveness did not attend the judgments of such tribunals ***." Southern Pacific Rd. Co. v. United States (1897), 168 U.S. 1, 49 [18 S.Ct. 27-28, 42 L.Ed. 355, 377]. Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178, 1180. We further noted that a judgment from a federal court may bar a similar action in state court: Similarly, in Lakewood Congregation of Jehovah's Witnesses, Inc. v. Lakewood (1984), 20 Ohio App.3d 338, 20 OBR 441, 486 N.E.2d 194, this court held that "[a] cause of action which has been litigated in federal court determining that a zoning ordinance did not violate the United States Constitution may not thereafter be litigated in a state court, in a case involving the same parties and the same facts as those in the federal case, on the grounds - 13 - that the zoning ordinance violated the Ohio Constitution, based on the doctrine of res judicata." Id., syllabus. Id. at 126-27. Based on the foregoing, we conclude the trial court properly granted St. Alexis summary judgment on the basis that appellant's complaint is barred by the doctrine of res judicata. Thus, the judgment of the United States District Court is conclusive of the rights, questions and facts in issue between appellant and St. Alexis. Appellant's second assignment of error is overruled. III. A. Appellant's third through fifth and seventh assignments of error contest the trial court's decision granting summary judgment to St. Augustine Manor and St. Augustine Manor Corporation. Appellant's sixth assignment of error contests the trial court's decision granting summary judgment to Catholic Charities of Cleveland and the Catholic Diocese of Cleveland. In their motion for summary judgment, St. Augustine Manor and St. Augustine Manor Corporation (collectively referred to hereinafter as "St. Augustine") argued that appellant was an at-will employee whose employment was terminable at will by either party for any reason not contrary to law. St. Augustine further contended that summary judgment was appropriate on all causes of action as appellant could - 14 - not set forth a genuine issue of material fact on any of her claims. Appellant's complaint against St. Augustine, as well as against Catholic Charities of Cleveland and the Catholic Diocese of Cleveland (collectively referred to hereinafter as "Catholic Charities") attempts to set forth the following claims: (1) wrongful discharge, breach of implied contract and promissory estoppel; (2) retaliatory discharge; (3) sexual harassment and sexual discrimination; (4) intentional infliction of emotional distress and (5) conspiracy. Appellant's complaint further alleges that Catholic Charities is liable for St. Augustine's conduct, pursuant to an alleged agent/principal relationship between Catholic Charities and St. Augustine, through the doctrine of respondeat superior. In support of its motion, St. Augustine attached the affidavit of Laurie Palmer, the Assistant Administrator of St. Augustine Manor, who averred that appellant was employed by St. Augustine Manor from June 21, 1987 to April 29, 1992, when she was discharged. At all relevant times, it was averred, appellant was an at-will employee whose employment could be terminated by either party. Ms. Palmer further averred there were no written or oral representations made to appellant that her employment was anything but at-will. Further, at the time appellant was hired, St. Augustine was aware that appellant had previously filed a discrimination claim against other employers. - 15 - It was further averred that on April 29, 1992, appellant was terminated for repeated violations of rules of conduct set forth in the Personnel Policies of St. Augustine Manor. A copy of appellant's employee performance report dated April 29, 1992 and pages 14-25 of the Personnel Policies of St. Augustine Manor regarding termination and grievance procedure are attached to St. Augustine's motion. B. In appellant's third assignment of error, appellant complains the trial court erred in granting summary judgment on her claim for sexual harassment and sexual discrimination brought pursuant to 42 USC 2000e et seq. Appellant's seventh assignment of error also partially contends that the trial court erred in requiring proof of professional psychiatric treatment to sustain her claim for sexual harassment. It is not contested that state courts have concurrent jurisdiction with federal courts to hear and determine claims for gender discrimination brought pursuant to Title VII of the Civil Rights Act of 1964 (42 USC 2000e et seq.). Yellow Freight Systems, Inc. v. Donnelly (1990), 494 U.S. 820, 108 L.Ed.2d 834, 110 S.Ct. 1566; Elek v. Huntington Natl. Bank (1991), 66 Ohio St.3d 135, 139. Indeed, the trial court did not rule, as appellant contends, that it lacked jurisdiction over appellant's claims for sexual harassment and sexual discrimination. Instead, the trial - 16 - court ruled that appellant failed to produce evidence to raise a genuine issue of material fact concerning her claim for sexual harassment and sexual discrimination. Whether appellant's claims for sexual harassment and sexual discrimination are brought pursuant to 42 USC 2000e et seq., R.C. 4112.02 or R.C. 4112.99, the evidentiary standards applicable to a determination regarding a violation of Title VII of the Civil Rights Act of 1964 are applicable. Little Forest Medical Ctr. of Akron v. Ohio Civ. Rights Comm. (1991), 61 Ohio St.3d 607, 609; Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 196. A plaintiff in a Title VII claim has an initial burden of establishing a prima facie case of sexual discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802. If the plaintiff is successful in carrying that burden, it is presumed that she was discharged because of her sex. The defendant can overcome that presumption by articulating a legitimate, nondiscriminatory reason for the discharge. Id. at 802. The defendant's burden to overcome the presumption is not onerous; it merely must raise a genuine issue of fact regarding whether it discriminated against the plaintiff. Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 254. Should the defendant carry its burden, the plaintiff must then "be afforded a fair opportunity to show that [defendant's] - 17 - stated reason for [plaintiff's discharge] was in fact pretext." McDonnell Douglas, supra, at 804. In order to sustain a prima facie claim for sexual harassment, appellant must produce evidence raising a genuine issue of fact that: (1) she was a member of a protected class; (2) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based upon sex; (4) the charged sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance and creating an intimidating, hostile or offensive working environment that affected the psychological well-being of the plaintiff and (5) the existence of respondeat superior liability. Scandinavian Health Spa, Inc. v. Ohio Civ. Rights Comm. (1990), 64 Ohio App.3d 480, 489, approving Highlander v. K.F.C. Natl. Management Co. (C.A.6, 1986), 805 F.2d 644, 649; Rabidue v. Osceala Refining Co. (C.A.6, 1986), 805 F.2d 611; Henson v. Dundee (C.A.11, 1982), 682 F.2d 897. See, also, Harris v. Forklift Sys., Inc. (1993), ____ U.S. ____, 114 S.Ct. 367 (eliminating requirement that plaintiff's serious psychological well-being be affected). In opposition to St. Augustine's motion for summary judgment, appellant averred to one instance in which her supervisor, Thomas Dagg, brushed against her breasts. Reference is also made in her deposition to the same incident. However, the remainder of appellant's affidavit states mere conclusory allegations of - 18 - harassment. Appellant generally avers that her supervisor "engaged in many more incidents of harassment of me than can be adequately described in this affidavit." Appellant further averred that each time she brought her "concerns" to Mr. Dagg's supervisor, Mr. Dagg's supervisor took Mr. Dagg's side. It is dubious whether the claim of one instance of sexually improper conduct, i.e., Mr. Dagg brushing against appellant's breasts, can satisfy the second element of a prima facie case of sexual harassment. It is even more dubious, and we conclude that appellant has failed to produce substantial evidence to prove, that such conduct has the effect of unreasonably interfering with appellant's work performance and creating an intimidating, hostile or offensive working environment. The workplace must be "permeated with discriminatory intimidation, ridicule and insult *** that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris, supra, 114 S.Ct. at 370, citing Meritor Savings Bank v. Vinson (1986), 477 U.S. 57, 52. Furthermore: *** mere utterance of an *** epithet which engenders offensive feelings in a (sic.) employee," does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. - 19 - Id. Finally, appellant fails to produce any substantive evidence to support a theory of respondeat superior. Generally, in order to support a finding of respondeat superior, a plaintiff must show that the employer knew or should have known of the harassment and failed to take remedial action. Scandinavian Health Spa, supra; Bundy v. Jackson (C.A.D.C. 1981), 641 F.2d 934, at 943. See, also, Meritor, supra, at 72, stating, in an action involving continued instances of sexual harassment, "*** absence of notice to an employer does not necessarily insulate that employer from liability ***"; and Davis v. Black (1991), 70 Ohio App.3d 359, 366. Appellant's mere allegations that her "concerns" were not being addressed fails to substantiate her claim that her employer knew or should have known of the harassment and failed to take remedial action. Accordingly, appellant has failed to produce evidence to raise a genuine issue of fact on a prima facie case of sexual harassment. Summary judgment on appellant's claim for sexual harassment is, therefore, sustained. Likewise, appellant has failed to raise a genuine issue of fact of a prima facie case of sexual discrimination. In order to sustain a prima facie claim for sexual discrimination, appellant must produce evidence raising a genuine issue of fact that: (1) she was a member of the statutorily-protected class; (2) that she was discharged; (3) that she was qualified for the position and (4) - 20 - that she was replaced by, or that her discharge permitted the retention of, a person not belonging to the protected class. See, Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, paragraph one of the syllabus; and Neal v. Hamilton Cty. (1993), 87 Ohio App.3d 670. In the present case, appellant has failed to produce any evidence that she was replaced by, or that her discharge permitted the retention of, a person not belonging to the protected class. The trial court, therefore, properly granted St. Augustine's motion for summary judgment on appellant's claim for sexual discrimination. Appellant's third and seventh assignments of error are therefore overruled. C. In appellant's fourth assignment of error, appellant argues the trial court improperly granted summary judgment to St. Augustine on her claim for wrongful retaliation. Appellant argues that evidence of a causal connection exists that St. Augustine discharged her in retaliation for her having filed a sexual discrimination claim against St. Alexis. Again, federal law provides the applicable standard for reviewing retaliation claims. In order to support her claim of retaliatory discharge, appellant must establish: (1) that she engaged in protected activity; (2) that she was the subject of adverse employment action and (3) that a causal link existed - 21 - between the protected activity and the adverse action. Chandler v. Empire Chemical, Inc. (Dec. 21, 1994), Summit App. No. 16708, unreported; Jackson v. RKO Bottlers of Toledo, Inc. (C.A.6, 1984), 743 F.2d 370, 375; see, also, Neal v. Hamilton Cty., supra. If she successfully establishes a prima facie case, the burden shifts to St. Augustine to articulate a legitimate reason for its action. Burrus v. United Telephone Co. of Kansas (C.A.10, 1982), 683 F.2d 339, 343, certiorari denied (1982), 459 U.S. 1971. If St. Augustine carries that burden, the burden then shifts back to appellant to show that the articulated reason was merely a pretext. Id. Based on the record before us, we conclude that there is no evidence that St. Augustine's action in discharging appellant followed her activity in pursuing a claim of discrimination against St. Alexis in a sufficiently close period of time to warrant an inference of retaliatory motivation. It is undisputed that St. Augustine knew that appellant was pursuing a claim of discrimination against St. Alexis when St. Augustine hired appellant in June of 1987. However, appellant was not discharged from her position with St. Augustine until April of 1992, almost five years later. Without any evidence that St. Augustine's action in terminating appellant was motivated by appellant's protected activity, appellant's termination does not warrant an inference of wrongful termination. Appellant's mere conclusory statements in her affidavit, in which she alleges that - 22 - various poor performance reviews and ultimately her discharge from St. Augustine were in retaliation for her sex discrimination claim against St. Alexis, is insufficient to raise a genuine issue of fact. Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 669. Accordingly, appellant's fourth assignment of error is overruled. D. In appellant's fifth assignment of error, appellant claims the trial court erred in granting St. Augustine summary judgment on her claim for promissory estoppel. Appellant contends that reasonable minds could differ as to whether she relied to her detriment on promises contained in the employee handbook. In Ohio, there is a strong presumption in favor of a contract of employment terminable at will unless the terms of the contract or other circumstances clearly manifest the parties' intention otherwise. Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249, 255; Gargasz v. Nordson Corp. (1991), 68 Ohio App.3d 149; Vitanza v. First National Supermarkets, Inc. (June 24, 1993), Cuyahoga App. No. 62906, unreported, at 21. "Unless otherwise agreed, either party to an oral employment-at-will agreement may terminate the employment relationship for any reason which is not contrary to law." Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, paragraph one of the syllabus. A specific term of - 23 - employment, however, will generally negate the employment-at-will relationship. See, Henkel, supra; and Jones v. East Center for Community Mental Health, Inc. (1984), 19 Ohio App.3d 19, paragraph one of the syllabus. An exception to the employment-at-will doctrine is a claim for promissory estoppel. In Mers, supra, paragraph three of the syllabus, the Ohio Supreme Court held: The doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. The test in such cases is whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee. Moreover, in Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, paragraph three of the syllabus, the supreme court elaborated on the Mers standard for proving a case of promissory estoppel: Standing alone, praise with respect to job performance and discussion of future career development will not modify the employment-at- will relationship. A demonstration of detrimental reliance on specific promises of job security can create an exception to the employment-at-will doctrine. (Mers, [supra], approved and followed.) Later, the supreme court re-affirmed the Helmick principle in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph two of the syllabus, wherein the court held that "[a] promise of future benefits and opportunities without a specific promise of continued employment does not support a promissory - 24 - estoppel exception to the employment-at-will doctrine." There, the court distinguished promises of job security or continued employment from promises of future opportunities within the company and held the latter was insufficient to support a claim for promissory estoppel. Id. at 110-11. In Wing, the supreme court held that a promised opportunity to purchase equity in the company amounted to nothing more than an unenforceable promise of future benefits or opportunities and not a specific promise of continued employment. This court has further held that the promises or representations allegedly relied upon must be "clear and unambiguous" in their terms in order to support a promissory estoppel claim. Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 26; Marich v. Ameritrust Co., N.A. (June 30, 1994), Cuyahoga App. No. 66671, unreported, at 6-7; Corrice v. Cleveland Electric Illuminating Co. (Feb. 24, 1994), Cuyahoga App. No. 64742, unreported; and Eagleye v. TRW, Inc. (Feb. 17, 1994), Cuyahoga App. No. 64662, unreported. Moreover, an employee cannot rely on "nebulous representations" of continued employment. Penwell v. Amherst Hosp. (1992), 84 Ohio App.3d 16, 20; Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656, 660. In the present case, appellant fails to produce any evidence of specific promises of job security. The relevant portions of the employee handbook referred to by appellant merely set forth a grievance procedure and a sixty-day probationary period for - 25 - violations of some, but not all, disciplinary charges prior to termination. Appellant claims neither procedure was followed by St. Augustine in discharging her. Appellant adds that had the proper grievance procedure been followed, she "could have clarified the nature of [disciplinary] charges" against her and that she relied on these "promises" in refusing "other employment." A review of the relevant portions of the employee handbook fails to reveal specific promises of job security or continued employment, Helmick, supra; Wing, supra; rather, the handbook contains "policies," not promises. In this light, the company's policies are analogous to unenforceable promises of future benefits and do not amount to representations of job security. Moreover, appellant's mere conclusory allegations set forth in her brief and affidavit fail to establish facts sufficient to overcome St. Augustine's motion for summary judgment. Winy, supra, paragraph one of the syllabus. Appellant's assertion that had St. Augustine followed proper procedure, she "could have" clarified the charges against her falls significantly short of establishing that she reasonably relied on representations in the handbook. Additionally, appellant sets forth no facts supporting her claim that she refused other employment. Appellant's fifth assignment of error is overruled. D. - 26 - In appellant's seventh assignment of error, appellant complains the trial court erred in requiring proof of professional psychological treatment to support her claim for sexual harassment and intentional infliction of emotional distress. We have already concluded that proof of serious psychological harm is not required to set forth a prima facie claim of sexual harassment. Harris Forklift, supra. We add, however, that we have already concluded that appellant's claim for sexual harassment otherwise fails based on the record before us. As for appellant's claim for intentional infliction of emotional distress, we also conclude, as did the trial court, that appellant has failed to raise a genuine issue of material fact of intentional and outrageous conduct on the part of St. Augustine, its agents or employees. The elements of a claim for intentional infliction of emotional distress were set forth in Yaeger v. Local Union 20 (1983), 6 Ohio St.3d 369, at 374, 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 to the other results from it, for such bodily harm. For conduct to reach the level of "extreme and outrageous," it must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. Id. at 375; Russ v. TRW, Inc. (1991), 59 Ohio St.3d 42; Vitanza v. First National Supermarkets, Inc. (June 24, 1993), Cuyahoga App. No. - 27 - 62906, unreported, at 19. Mere insults, indignities, threats, annoyances, petty oppressions or other trivialities do not amount to outrageous conduct. Yaeger, supra. Moreover, the defendant's conduct must be the proximate cause of the plaintiff's psychic injuries and the resultant emotional distress so serious that a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances. Neal, supra, at 679; Uebelacker v. Cincon. Sys., Inc. (1988), 48 Ohio App.3d 268, 275-76. Appellant sets forth one instance where she claims her supervisor brushed against her breasts but otherwise merely sets forth conclusory allegations of harassment. Again, we cannot consider conclusory allegations of harassment as evidence of intentional infliction of emotional distress. Wing, supra; Neal, supra. Appellant has the burden of setting forth facts sufficient to raise a genuine issue for litigation. To this end, appellant's assertion that her supervisor on one occasion brushed up against her breasts is insufficient to demonstrate conduct which is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Moreover, we cannot conclude that the resulting emotional distress was so serious that a reasonable person would be unable to cope adequately with the mental distress engendered by the circumstances. The trial court, therefore, properly granted St. Augustine summary judgment on - 28 - appellant's claim for intentional infliction of emotional distress. Appellant's seventh assignment of error is overruled. E. Appellant next argues, through her sixth assignment of error, that the trial court erred in granting summary judgment in favor of Catholic Charities and the Catholic Diocese. Appellant contends that a genuine issue of fact exists as to the control the Catholic Diocese and Catholic Charities held over St. Augustine. Appellant essentially argues that St. Augustine is "substantially identical to or controlled by" the Catholic Diocese and Catholic Charities. For the doctrine of respondeat superior to apply, first the employee/agent must, herself, be liable for an act which was committed in the scope of her employment. Strock v. Pressnell (1988), 38 Ohio St.3d 207, 217; Cooper v. Grace Baptist Church of Columbus, Ohio, Inc. (1992), 81 Ohio App.3d 728. In the present case, we have already concluded that summary judgment was properly granted in St. Augustine's favor on appellant's claims. Consequently, liability will not attach to Catholic Charities or the Catholic Diocese pursuant to the doctrine of respondeat superior. Even if St. Augustine were somehow liable on appellant's claims, we would still conclude that summary judgment was properly granted to Catholic Charities and the Catholic Diocese. - 29 - Under the doctrine of respondeat superior, "a master is liable in certain cases for the wrongful acts of his servant. Black's Law Dictionary (5 Ed. Rev. 1983), 681. In determining whether an agency relationship exists, the Ohio Supreme Court has held that "the relationship of principal and agent or master and servant exists only when one party exercises the right of control over the actions of another, and those actions are directed toward the attainment of an objective which the former seeks." Hanson v. Kynast (1985), 24 Ohio St.3d 171, 173. Although the requisite degree of control has not been established, Id. at 175, "the basic test is whether the employer has the right of control over the manner and means of the work being done." Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 82. To determine this, each indicium of control must be viewed in relation to each other and the surrounding circumstances. Id. In support of its motion to dismiss, Catholic Charities and the Catholic Diocese attached the affidavits of August A. Napoli, Jr., President of Catholic Charities, and Father John J. Wright, Legal and Financial Secretary of the Catholic Diocese, who each averred that neither Catholic Charities nor the Catholic Diocese has been involved in the day-to-day business operations of St. Augustine, including decisions concerning the employment of individuals by St. Augustine. Further, it was averred that Catholic Charities and the Catholic Diocese had not exercised - 30 - operational control or exercised any direction or control over St. Augustine. In response, appellant averred that her paychecks were signed by a father not associated with St. Augustine and that a publication of St. Augustine's indicated some affiliation between St. Augustine and Catholic Charities and the Catholic Diocese. Appellant's evidentiary materials, however, fall woefully short of raising a genuine issue of material fact that Catholic Charities or the Catholic Diocese exercised control or direction over the actions of St. Augustine. As such, the doctrine of respondeat superior will not impute vicarious liability from St. Augustine to Catholic Charities or the Catholic Diocese. The trial court, therefore, properly granted summary judgment to Catholic Charities and the Catholic Diocese. Appellant's sixth assignment of error is, therefore, overruled. IV. Appellant's eighth and ninth assignments of error contest the trial court's ruling on discovery issues and are limited to her claims against St. Augustine. A. In appellant's eighth assignment of error, appellant argues the trial court erred in denying appellant's motion for a - 31 - protective order and granting St. Augustine's motion to compel appellant to provide the identities and/or authorizations for each psychiatrist, psychologist, other mental health practitioner and other health care providers who had examined or treated appellant. In ruling on appellant's motion for a protective order, the trial court determined that such discovery was not protected by the physician/patient privilege. R.C. 2317.02 establishes the physician/patient privilege and provides, in pertinent part: (B)(1) A physician or a dentist concerning a communication made to him by his patient in that relation or his advice to his patient, except as otherwise provided in this division and division (B)(2) of this section, and except that, if the patient is deemed by section 2151.421 [2151.42.1] of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject. The testimonial privilege under this division does not apply and a physician or dentist may testify or may be compelled to testify in any of the following circumstances: (a) In any civil action, in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action, or in connection with a claim under Chapter 4123. of the Revised Code, under any of the following circumstances: * * * (iii) If a medical claim, dental claim, chiropractic claim, or optometric claim, as defined in section 2305.11 of the Revised Code, an action for wrongful death, any other type of civil action, or a claim under Chapter 4123. of the Revised Code is filed by the patient, - 32 - the personal representative of the estate of the patient if deceased, or his guardian or other legal representative. It is well settled that upon the filing of a civil action, a plaintiff waives the physician/patient privilege with respect to physical or mental conditions relevant to the civil proceeding. See, In re Miller (1992), 63 Ohio St.3d 99; Calihan v. Fullen (1992), 78 Ohio App.3d 266; Colling v. Franklin Cty. Children Serv. (1991), 76 Ohio App.3d 736; Hayes v. Cleveland Pneumatic Co. (1994), 92 Ohio App.3d 36. In the present case, appellant's physical and psychological conditions are undeniably relevant to her claim that she suffered severe emotional distress as a result of the sexual harassment, sexual discrimination and intentional infliction of emotional distress allegedly inflicted upon her by the defendants herein. The trial court, therefore, properly granted St. Augustine's motion to compel discovery. Appellant's eighth assignment of error is accordingly overruled. B. In appellant's final assignment of error, appellant complains the trial court erred in denying her motion to compel St. Augustine to produce various documents related to phone calls to and from St. Augustine and to answer interrogatories directed to St. Augustine's employees concerning their observations of appellant's misconduct. - 33 - The trial court exercises broad discretion over the breadth and scope of discovery. Civ.R. 26; State, ex rel. Grandview Hosp. & Medical Ctr. v. Gorman (1990), 51 Ohio St.3d 94. A review of appellant's motion to compel reveals that appellant largely sought information which was irrelevant; i.e., documents related to phone calls to and from St. Augustine, or information from non-party witnesses in the form of interrogatories which were designed to take the place of depositions. Penn Central Transportation Co. v. Armco Steel Corp. (1971), 27 Ohio Misc. 76. Appellant's motion to compel was, therefore, properly overruled. Appellant's final assignment of error is overruled. Judgment affirmed. - 34 - 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 Cuyahoga County 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. JAMES M. PORTER, J. TERRENCE O'DONNELL, J. CONCUR PRESIDING JUDGE DONALD C. NUGENT 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. .