COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68874 JO ANN B. PFLEGER : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION BP AMERICA, INC. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 27, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 270,642 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: SEYMOUR R. BROWN Attorney at Law 30100 Chagrin Boulevard. #301 Cleveland, Ohio 44124 For defendant-appellee: ROBERT M. WOLFF RICHARD C. HUBBARD, III STEPHEN S. ZASHIN Attorneys at Law 1301 East Ninth Street Erieview Tower - 20th Floor Cleveland, Ohio 44114 - 2 - TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant Jo Ann B. Pfleger appeals the decision of the trial court which granted summary judgment to defendant- appellee BP America, Inc., her employer in a wrongful discharge case. For the reasons stated below, we affirm. The facts giving rise to this matter are as follows. Plain- tiff Pfleger was hired as an employee of BP America, Inc. in August, 1983. She worked in various departments of BP America, Inc. until her termination in February, 1993. In July of 1986, she accepted a trainee position in the Retail Credit Card Center. Plaintiff was working in the Retail Credit Card Center when, in October, 1988, BP America, Inc., at her request, assigned her to a new position in the Patent and License Section as senior patent secretary. Plaintiff Pfleger's work record had been acceptable for ten years. BP America, Inc. offered a voluntary separation package to many of its employees due to the corporate decision to downsize. Pfleger chose not to take the voluntary separation package and sought a posted position in Master File in the Wholesale Accounting Department. - 3 - In October of 1992, plaintiff Pfleger was offered the posi- tion in Wholesale Accounting and transferred to that department. She was supervised by Lawrence Willis in the Master File group. On December 4, 1992, Willis and Pfleger discussed Willis's areas of concern as to Pfleger's job performance within the department. Pfleger provided a written response to her supervisor's discussion on December 5, 1992. On December 7, 1992, Willis sent a letter to plaintiff Pfleger detailing the areas of his concern, indicating dissatisfaction with her performance and offering her the opportunity to improve her performance. On January 22, 1993, Pfleger was notified by letter that she would be a probationary employee for the next thirty days. The letter itemized areas which needed improvement, including punctuality, attendance and improved performance of the duties required of her position. She was advised in the letter that she might be terminated at any time during the probationary period. BP America, Inc. terminated plaintiff Pfleger on February 22, 1993 for a variety of stated reasons, including her inability to fully and properly complete work assignments, absenteeism and tardiness. Pfleger filed suit against BP America, Inc., alleging five claims: 1) wrongful discharge; 2) breach of an implied covenant of good faith; - 4 - 3) discrimination based upon a perceived disability; 4) negligent and/or intentional infliction of serious emotional distress; and 5) defamation. Defendant BP America, Inc. filed a motion for summary judg- ment on all of plaintiff's claims. Plaintiff filed a memorandum in opposition. The trial court granted defendant's motion on March 30, 1995. Plaintiff Pfleger timely filed this appeal and raises the following sole assignment of error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR A SUMMARY JUDGMENT ON THE GROUND THAT PLAINTIFF HAS FAILED TO PRODUCE SUFFI- CIENT EVIDENCE TO SUPPORT HER CLAIMS OF WORK PLACE DISCRIMINATION ARISING OUT OF A DIS- ABILITY OF MENTAL IMPAIRMENT AND CONTINUED EMPLOYMENT BASED ON PUBLIC POLICY, WHEN PLAINTIFF HAS PRODUCED MORE THAN SUFFICIENT EVIDENCE, AND BECAUSE GENUINE ISSUES OF MATERIAL FACT REMAIN FOR RESOLUTION AT TRIAL. The trial court, in granting defendant-appellee BP America, Inc.'s motion for summary judgment, held: Defendant's Motion for Summary Judgment has forced plaintiff to produce evidence on issues for which plaintiff bears the burden of production at trial. Plaintiff has failed to produce sufficient evidence to support her claims. Therefore, the within motion for summary judgment in favor of defendant and against plaintiff is granted. See Wing v. Anchor Media Ltd., 59 O. St.3d 108 (1991). Judgment for Defendant. Costs to Plaintiff. Civ.R. 56 provides in pertinent part: (C) *** Summary judgment shall not be rendered unless it appears from such evidence and stipulation and only therefrom, that rea- sonable minds can come to but one conclusion and that conclusion is adverse to the party - 5 - against whom the motion for summary judgment is made, such party being entitled to have the evidence for stipulation construed most strongly in its favor. * * * (E) *** When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. The court of appeals reviews a lower court's granting of a summary judgment de novo. "This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157- 1158. ('We review the judgment independently and without deference to the trial court's determination'). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). 'The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion.' Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50, 593 N.E.2d 24, 26; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741, 607 N.E.2d 1140, 1144." Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, at 588. A motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden - 6 - of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, at 111. "The non-moving party must present 'specific facts' showing that there is genuine issue for trial in order to defeat a motion for summary judgment." Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 256. The mere existence of some factual disputes, if not material, will not defeat a summary judgment otherwise proper. Buckeye Union Ins. v. Consolidated Stores Corp. (1990), 68 Ohio App.3d 19. In reviewing a motion for summary judgment, trial and appel- late courts use the same standard -- that the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, and if, when so viewed, reasonable minds can come to differing conclusions, the motion should be overruled. With these standards in mind, we address the appellant's sole assignment of error as to each of her claims. Claim 1: Wrongful Discharge Defendant-appellee BP America, Inc. moved for summary judg- ment on Claim One of the plaintiff-appellant's complaint for wrongful discharge on the basis that the appellant was an at-will employee who was terminated for "just cause." In Ohio, there is a presumption that employment is at-will. Henkle v. Educational Research Council (1976), 45 Ohio St.2d 249 at 255. "In an at-will employment relationship, either the employee - 7 - or the employer may terminate the employee 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. Appellant Pfleger contends that the at-will employment rela- tionship between BP America, Inc. and herself changed. The trier of fact can consider the facts and circumstances surrounding an oral employment at-will relationship, including the character of the employment, the custom, the course of dealing between the par- ties, company policy or any other fact which may illuminate the question. Kelly v. Georgia Pacific Corp. (1989), 46 Ohio St.3d 134. Ohio courts have recognized three exceptions to the at-will employment doctrine. Employer handbooks, company policy and oral representations may give rise to implied or express contractual provisions that alter the terms of an oral at-will employment relationship. Mers, supra, at 104. An employer's right to dis- charge an employee may also be limited by representations or promises made to the employee which fall within the doctrine of promissory estoppel. Id. An at-will relationship is limited in those situations where discharge is in violation of a statutory protection. Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228. A. Implied Contract - 8 - Appellant alleged in her complaint that a contract of employ- ment existed between BP America, Inc. and herself. In Ohio, the burden of proof rests with the employee to demonstrate that he or she was not an employee at-will or that his or her discharge was contrary to law. Kuhn v. St. John & West Shore Hosp. (1989), 50 Ohio App.3d 23. Courts will presume that a contract terminable at will continues unless the parties have clearly manifested their intent to bind each other in a different manner. Healy v. Repub- lic Powdered Metals, Inc. (1992), 85 Ohio App.3d 281, at 285. "There can be no contract available to exempt appellant from the employment-at-will doctrine unless there is a promise. Restate- ment of the Law 2d Contracts (1973), Sections 17 and 90; Wing v. Anchor Media, Ltd., supra, 59 Ohio St.3d at 110; Mers v. Dispatch Printing Co., supra, 19 Ohio St.3d at 104, 19 OBR at 264-265, 483 N.E.2d at 154." Clipson v. Schlessman (1993), 89 Ohio App.3d 230, at 233. Appellant presented no evidence of intention of the parties to bind themselves in a manner different from an at-will employment situation. She states in her affidavit that "she was told she had a job for life." This statement, standing alone, does not clearly manifest the parties intent to bind each other. "Standing alone, praise with respect to job performance and discussion of an individual's future career will not evidence an employment prom- ise. Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio - 9 - St.3d 131, 135-136, 543 N.E.2d 1212, 1216-1217." Clipson, supra, at 233-234. B. Promissory Estoppel "Where appropriate, the doctrine of promissory estoppel is applicable and binding in all employment at-will agreements when a promise which the employer should reasonably expect to induce such action or forbearance on the part of the employee does induce such action or forbearance, if injustice can be avoided only by enforcement of the promise." Mers, supra, at 105. The test for promissory estoppel is outlined in Healy v. Republic, supra, at 284. The plaintiff is required to demonstrate that: 1) there was a promise, clear and unambigu- ous in its terms; 2) there was reliance by the party to whom the promise is made; 3) the reliance was reasonable and foresee- able; and 4) the party claiming estoppel was injured by the reliance. Although appellant has maintained that she was promised a job for life, she presented no evidence on prong two (her reliance on the alleged promise), prong three (that such reliance would be reasonable) or prong four (that she was injured as a result of such reliance). Appellant has not shown that she may maintain an action for wrongful discharge based upon the equitable doctrine of - 10 - promissory estoppel to enforce a promise that does not meet the criteria of a formal contract. C. Public Policy Exception to the At-Will Employment Doctrine The at-will character of the employer/employee relationship is limited in those situations where discharge is in violation of a statutory protection. Greeley v. Miami Valley Maintenance Con- tractors, Inc., supra. Appellant contends that the at-will employment relationship between BP America, Inc. and herself is limited by the statutory protection of her perceived disability. The basis of her argument is that her perceived disability has the statutory protection of the Americans with Disability Act and R.C. 4112 and, therefore, her discharge is in violation of that protection and against public policy. "Disability," as defined within the ADA, exists when (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual exists; (b) there is a record of such an impairment; or (c) the individual is regarded as having such an impairment. Handicap, as defined in R.C. 4112.01(A)(13), "means a physi- cal or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working; a record of a physical or mental - 11 - impairment; or being regarded as having a physical or mental impairment." Appellant presented no evidence that she had a disability or handicap as defined within either the ADA or R.C. 4112.01. No evidence was presented that the appellant had a "perceived dis- ability." No credible evidence exists that appellant was per- ceived as having a disability by her employer, BP America, Inc. Appellant failed to present evidence that her termination was related to any disability, handicap or perceived disability; therefore, the appellant has failed to present evidence to support her claim for the existence of a public-policy exception to her employment at-will status. The appellant having failed to produce any evidence suffi- cient to indicate a change in the at-will status of the employer/employee relationship as to an implied contract, promis- sory estoppel or a statutory protection, the trial court properly granted summary judgment to appellee BP America, Inc. on the first claim of the appellant's complaint for wrongful discharge. Claim 2: Violation of Covenant of Good Faith "Ohio law does not recognize the doctrine of good faith and fair dealing in employment contracts." Edelman v. Franklin Iron and Metal Corp. (1993), 87 Ohio App.3d 406, at 411. The court stated in Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, at 105: - 12 - Lastly, we are called upon to determine whe- ther the parties to an oral employment at-will agreement must act in good faith. In Fawcett, supra, we are presented with a challenge whereby the discharged employee contended that the right "to terminate employment at will for any cause, at any time whatever, is not absolute, but limited by principles which protect persons from gross or reckless disregard of their rights and interest, willful, wanton or malicious acts or acts done intentionally, with insult, or in bad faith." Id., at 249. This court, in a unanimous decision, rejected these intentions and refused to allow recovery of civil damages for employment discharge. Thus, we failed to recognize an exception for malicious acts or a duty on the parties to act in good faith. The trial court properly granted the appellee's motion for summary judgment on Claim Two of the appellant's complaint. The appellant's claim in Claim Two fails as a matter of law. Claim 3: Discrimination Based Upon a Perceived Disability To show a prima facie case for disability discrimination under the ADA, the appellant needs to produce evidence which, at a minimum, establishes that: 1) she was disabled as defined by statute; 2) she was qualified to do her job with or without a reasonable accommodation; 3) she was discharged; and 4) she was replaced by a non-disabled per- son. Sherman v. Optical Imaging Systems, Inc. (1994), 843 F.Supp. 1168, at 1181. - 13 - The appellant failed to present: 1) evidence that she was disabled as defined by the statute, evidence of impairment or evidence that it hindered major life activity; 2) evidence that she was qualified for the position; or 3) evidence that she was replaced by a non- disabled person. Thus, appellant failed to present evidence of disability discrim- ination under the ADA. To show a prima facie case for disability discrimination under R.C. 4112, the appellant must show that: 1) she is disabled; 2) the employer's action was taken at least in part because she was disabled; and 3) she, though disabled, could safely and substantially perform the essential functions of the job in question. Columbus v. Leibhart (1993), 86 Ohio App.3d 469; Greater Cleveland Regional Transit Authority v. Ohio Civil Rights Comm. (1989), 58 Ohio App.3d 20, at 22. Appellant produced no evidence to prove that she had a dis- ability or handicap and thus failed to present evidence of dis- ability discrimination under R.C. 4112. No evidence was presented to show that such disability or handicap limited her major life activities. Appellant presented no record of impairment and concealed her alleged medical conditions from her employer. If an employer has - 14 - no notice of an employee's record of impairment, the employee cannot qualify as disabled or handicapped. "[O]bviously a defen- dant cannot discriminate against a plaintiff because of his record of disability when it has no knowledge of that record." Grinstead v. Pool Co. (E.D.La. 1994), 3 AD Cases 9, aff'd. 26 F.3d 118 (5th Cir. 1994). Appellee contends that the appellant was not qualified for the job due to her absenteeism and tardiness. Regular attendance and ability to perform the work are an essential function of any position. Larkins v. Ciba Vision Corp. (N.D.Ga. 1994), 858 F. Supp. 1572. Allowing liability when an employer indisput- ably had no knowledge of the disability but knew of the disability's effects, far removed from the disability itself and with no obvious link to the disability, would create an enormous sphere of potential liability. Tar- diness and laziness have many causes, few of them based in illness. The ADA hardly re- quires that merely because some perceived tardiness and laziness is rooted in disabili- ty, an employer who has not been informed of the disability, and who has no reason to know of the disability, is bound to retain all apparently tardy and lazy employees on the chance that they may have a disability that causes their behavior. The ADA does not re- quire clairvoyance. Hedberg v. Indiana Bell Telephone Co. (7th Cir. 1995), 47 F.3d 928, at 934. Appellant contends that the proffered reasons for her dis- charge are pretextual; however, "conclusory allegations and sub- - 15 - jective beliefs of pretext are insufficient to preserve a genuine issue for trial." Grinstead, supra, at 11. The trial court, therefore, properly granted summary judgment to appellee BP America, Inc. on the appellant's claim in Claim Three of the complaint of discrimination based upon a perceived disability where appellant Pfleger failed to present evidence that she had a disability which should have been perceived by her employer and for which the employer discriminated against her. Claim 4: Negligent and/or Intentional Infliction of Emotional Distress Appellant claimed that intense harassment and the intentional termination by BP America, Inc. caused negligent and/or intention- al infliction of emotional distress. A. Negligent Infliction of Emotional Distress "Liability for negligent infliction of emotional distress arises where a bystander to an accident suffers serious and fore- seeable emotional injuries." Tohline v. Central Trust Co. N.A. (1988), 48 Ohio App.3d 280, at 284. "Ohio courts do not recognize a separate tort for negligent infliction of emotional distress in the employment context." Hatlestad v. Consolidated Rail Corp. (1991), 75 Ohio App.3d 184, at 191. Consequently, plaintiff may recover for emo- tional harm negligently inflicted by defendant only by bringing a "traditional" claim for - 16 - negligent infliction of emotional distress, which requires plaintiff to show that he (1) was a bystander to an accident; (2) reasonably anticipated the peril thereof; and (3) suffered serious and foreseeable emotional distress as a result of his cognizance or fear of the peril. Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759, paragraphs three and four of the syllabus. Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, at 83. Therefore, as here, where the party alleging the emotional distress "failed to allege or produce evidence that his emotional distress resulted from his appreciation of an accident's peril, the trial court did not err in granting summary judgment to defendant on plaintiff's claim for negligent infliction of emotional distress." Id. at 83. The trial court properly granted appellee BP America, Inc.'s motion for summary judgment as to appellant's claim for negligent infliction of emotional distress. This claim must fail as a matter of law. B. Intentional Infliction of Emotional Distress The test to recover for intentional infliction of emotional distress is set forth in Hanly, supra, at 82, citing Pyle v. Pyle (1983), 11 Ohio App.3d 31, at 34: A claim for intentional infliction of emo- tional distress required plaintiff to show that 1) defendant intended to cause emotional distress, or knew or should have known that actions taken would result in serious emo- tional distress; 2) defendant's conduct was - 17 - extreme and outrageous; 3) defendant's actions proximately caused plaintiff's psychic injury; and 4) the mental anguish plaintiff suffered was serious. Appellant presented no evidence that appellee intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress or that the con- duct of the appellee was extreme and outrageous. "[A]n action to recover for emotional distress may not be premised upon mere embarrassment or hurt feelings, but must be predicated upon a psychic injury that is both severe and debili- tating." Uebelacker v. Cincom Systems, Inc. (1988), 48 Ohio App.3d 268, at 276. Appellant having failed to present evidence that the conduct of appellee BP America, Inc. was extreme and outrageous and caused injury that is both severe and debilitating, the trial court properly granted the appellee's motion for summary judgment on the claim of intentional infliction of emotional distress in Claim Four of the complaint. Claim 5: Defamation To establish a claim for defamation, a plaintiff must be able to set forth an unprivileged publication of false and defamatory language with the requisite malice. Tohline v. Central Trust Co., N.A. (1988), 48 Ohio App.3d 280, at 284. Careful review of the record before us shows that appellant identified no false statement issued by the appellee, no evidence - 18 - of publication of a false statement and no evidence of malice on the part of BP America, Inc. Therefore, the trial court properly granted the summary judgment of the defendant-appellee, BP Ameri- ca, Inc., on Claim Five of the complaint for defamation. CONCLUSION From the analysis above, we conclude that no genuine issues of material fact exist and, though construing the facts most favorably for the appellant, we decide that the trial court appropriately granted summary judgment in favor of the defendant-appellee, BP America, Inc., on each of the claims of the plaintiff-appellant due to the appellant's failure to produce evidence for which she bears the responsibility of production at trial pursuant to Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. The trial court properly granted the summary judgment motion of defendant-appellee BP America, Inc. on the wrongful discharge claim of plaintiff-appellant Pfleger. The record before us shows that the appellant was an at-will employee of appellee BP America, Inc. Appellant failed to place any fact into evidence to create a factual dispute material to the issues within the complaint. Appellant failed to present evidence on any matter which would remove the appellant from the at-will employment status by showing evidence of an implied contract of employment, promissory estoppel or a discharge in violation of a statutory protection. Appellee BP - 19 - America presented evidence that it terminated the at-will appellant for "just cause." Appellant's claim for implied covenant of good faith is not recognized in Ohio and, therefore, Claim Two must fail as a matter of law. Appellant presented no evidence that she was discriminated against on the basis of a perceived disability and, therefore, Claim Three must fail. Appellant's contention in Claim Four regarding negligent infliction of emotional distress is not recognized in Ohio within the employment context and will, therefore, fail as a matter of law. Appellant failed to produce evidence to support her claim for intentional infliction of emotional distress. Appellant presented no evidence to support her claim of defamation and, therefore, Claim Five will fail. The sole assignment of error of the appellant is not well taken. The decision of the trial court is affirmed. - 20 - 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 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. PATRICIA BLACKMON, P.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .