COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69439 MICHELLE LATIMORE-DEBOSE, : ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION BVM, INCORPORATED, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 4, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-270271 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: C. RANDOLPH KELLER, ESQ. RUSSELL W. HARRIS, ESQ. 1677 East 40th Street 13215 Detroit Avenue Cleveland, Ohio 44103 Lakewood, Ohio 44107 - 2 - DYKE, J.: Plaintiffs-appellants, Michelle Latimore Debose and her husband Gerald Debose, appeal a summary judgment granted in favor of Defendants-appellees, BVM Incorporated d.b.a. Budget Rent A Car of Cleveland and Harry V. Baker, Vice President and General 1 Manager. In three assignments of error, appellant claims that genuine issues of material fact exist with respect to whether appellee breached an express or implied contract of employment when he discharged her; whether appellee could discharge her for any lawful reason pursuant to the employment-at-will doctrine and whether her discharge was in contravention of public policy. Upon review, we find appellant's assignments of error to be devoid of merit. Hence, we affirm the summary judgment of the trial court. The facts which gave rise to the instant appeal are stated as follows. Appellant commenced employment with the appellee in June, 1988 as a Customer Service Sales Representative. In February, 1993 Pete Drodofsky, a United States Postal Department Inspector informed appellee that a Budget Rent A Car location situated in Euclid, Ohio had become the focus of an investigation involving credit card fraud executed via the mail. Drodofsky indicated that in the fall of 1992, he began investigating postal customer complaints that change of address cards had been filed without 1 Gerald DeBose and BVM d.b.a. Budget Rent A Car of Cleveland are parties to this action and appeal. However, for purposes of clarity "appellant" hereinafter refers to Michelle DeBose and "appellee" refers to Harry V. Baker. - 3 - their authorization and that credit cards were subsequently ordered in their names and forwarded to commercial or rented, mail boxes. Drodofsky's and appellee's affidavits further indicated that 50 complaining postal customers rented vehicles from the Euclid location operated almost exclusively by the appellant and that a majority of the processed contracts exhibited appellant's computer 2 password. On February 8, 1993 Drodofsky met with appellee and Budget operations manager, Roberta Lux at the main post office. Drodofsky reviewed his investigative information with them and requested that they proceed to the Euclid location to interview the appellant. Upon arrival Drodofsky identified himself and indicated that his purpose in interviewing the appellant was to determine whether she could identify a certain male suspect. Appellant refused to speak with Drodofsky until she spoke with her husband who allegedly called their attorney. Thereafter, no other questions were posed and Drodofsky requested that the appellant attend a meeting in his office. Appellee, appellant and appellant's counsel, among others, attended the meeting. However, counsel advised Drodofsky that appellant would not answer any questions relative to Budget customers or suspects. Appellee then 2 While appellant claims that other employees worked at the location during the relevant period of time, the record demonstrates that appellant operated the location by herself, Monday through Friday; that various, other employees operated the location only on Saturdays; that employees were trained there occasionally and that supervisors visited briefly. Hence, even in the light most favorable to the appellant, she could reasonably be considered to have operated the Euclid location on a primary or nearly exclusive basis. - 4 - requested that appellant attend a meeting in his office so that he could discuss the operation of the location with her and clarify how customer credit card information left the possession of the company. Appellee did not invite appellant's counsel. However, counsel attended and advised appellee that appellant would answer questions only through him. Appellee discontinued the meeting and on February 12, 1993 sent a letter to the appellant terminating her employment. On May 10, 1994 appellant filed the instant action for wrongful discharge alleging breach of an express or implied contract of employment; promissory estoppel and termination in contravention of public policy. On May 31, 1995 appellee filed the instant motion, attached the above cited affidavits and asserted that appellant was an employee-at-will and that her discharge was lawful. Appellant opposed the motion by arguing that a question of fact remained with respect to whether she was an employee-at-will because appellee's Employee Handbook failed to contain a disclaimer to that effect, because appellee's interrogatory admission that termination would be conducted in accordance with the disciplinary policies of the Handbook indicated that a meeting of the minds took place, because appellee's adherence to termi- nation policies demonstrated an intent to be bound by them and because the purpose statement of the Handbook indicated that a meeting of the minds took place thereby creating a contract of employment. The court granted appellee's motion for summary judgment on July 17, 1995. - 5 - This appeal followed. I THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BECAUSE A GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO WHETHER THE DISCHARGE OF PLAINTIFF- APPELLANT, MICHELLE DEBOSE, WAS A BREACH OF AN EXPRESS OR IMPLIED CONTRACT OF EMPLOYMENT. II THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BECAUSE A GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO WHETHER PLAINTIFFS-APPELLANTS' CLAIM BARS DEFENDANTS-APPELLEES' ASSERTION THAT THEY COULD TERMINATE THE EMPLOYMENT RELATIONSHIP AT WILL. Appellant's assignments of error, while stated differently, present the same question for review, to wit., whether genuine issues of material fact exist with respect to whether she was an employee-at-will. Hence, they shall be addressed together. In her first and second assignments of error, appellant claims that the purpose statement of appellee's handbook, a course of dealing and the customs and characteristics of her employment create questions of fact regarding the existence of an express or implied contract of employment and that consequently a question of fact exists with respect to whether she relied to her detriment upon the Handbook's disciplinary and termination provisions. Upon review, we find appellant's arguments to be devoid of merit. Employment for an indefinite period of time is presumed to be employment-at-will. See, Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249, 251. As a general rule, either party to an oral employment-at-will agreement may terminate the employment - 6 - relationship for any reason not contrary to law. Mers v. Dispatch Printing Co. (1985) 19 Ohio St.3d 100, 103. However, there are two exceptions to this general rule: implied contract and promissory estoppel. Id. at 103-104. Under the implied contract exception, "a handbook may be found to alter the terms of employment at will only if the employee and employer have agreed to create a contract from the writing." Tohline v. Central Trust Co., N.A. (1988), 48 Ohio app. 3d 280, 282-283. See, also, Uebelacker v. Cincom Systems, Inc. (1988), 48 Ohio App.3d 268, 273-274 and Vitanza v. First Natl. Supermarkets, Inc. (1993), Cuyahoga App. No. 62906, unreported. In the absence of mutual assent, a handbook is merely a unilateral statement of rules and policies which creates no rights and obligations. Tohline, supra. at 282. Appellant's claim that a meeting of the minds took place when she read appellee's Handbook is entirely unpersuasive. To hold that the unilateral act of reading a Handbook constitutes an "agreement" or demonstrates "mutual assent" between an employer and employee falls far short of the conduct or course of dealing required by Mers, supra. Appellant's argument that appellee's citation to a particular dismissal provision in his letter of termination is proof of an intent create a contract of employment is equally unpersuasive. The provision is cited in appellee's letter to inform appellant of the basis for her discharge. Appellant attempts to read into appellee's conduct an intent to - 7 - form a contract of employment when the intent is merely to follow non-contractual guidelines set forth in the handbook. Summary judgment is proper, pursuant to Civ.R. 56(C) if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclu- sion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(D); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id.477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 666, motion to certify overruled (1991), 58 Ohio St.3d 703. The record before the trial court demonstrated that appellant had no written contract of employment; that she was given the employee Handbook one and one half weeks after commencing employment without contemporaneous commentary or discussion; that she received no subsequent representations or promises from BVM or - 8 - Budget personnel regarding the Handbook or the duration of her employment and that the Handbook merely stated the rules and policies of the Budget Rent A Car Corporation headquartered in Chicago, Illinois. (See, Appellant's Depo. Pg 29-31 and Appellee's Affidavit, paragraphs 13 and 14, Defendants' Motion for Summary Judgment) Also, unlike the appellee, appellant attached no affidavits to her brief in opposition to support her assertion that conduct, promises and or a course of dealing on the part of the appellee altered her at-will employment. Additionally, contrary to her assertions, the precatory language of the Handbook fails to demonstrate that a meeting of the minds took place between appellant and appellee or that BVM d.b.a. Budget intended the 3 Handbook to create a contract of employment. 3 Our review of the following provisions indicates that they are simply unilateral statements of the rules and policies of Budget Rent A Car and do not create any contractual rights or obligations. See, Tohline, supra. PURPOSE OF THE HANDBOOK This handbook will serve as your guide to knowing and understanding the company policies and procedures that affect everyday employment. Use the handbook to acquaint yourself with general rules and policies, and refer to it whenever questions of this nature come up. If the meaning of something is not clear, ask your manager or supervisor to explain. This handbook will enable you to gain a clear understanding of what to expect from BUDGET RENT A CAR as an employer, and also what will be expected of you as an employee. You may be surprised how easy it is to understand company policies, once you've taken the time to know what they are. * * * - 9 - Since the Handbook did not constitute or create a contract, neither party was bound by it. Hence, appellant's promissory estoppel argument fails as she cannot be held to have reasonably relied to her detriment upon terms which are neither contractual or binding. Accordingly, appellant was an employee-at-will at the time of her discharge and appellee was entitled to discharge her for any reason not contrary to law. Appellant's refusal to personally answer appellee's questions regarding operation of the Euclid office after denying knowledge of criminal activity through counsel could reasonably be construed as insubordination as discussion of operations is clearly an obligation of employment. Appellant's refusal to personally explain how the confidential credit information of 50 customers left the possession of the company creates a justified managerial concern that appellant committed a gross violation of company rules and could no longer be trusted with the credit information of Budget customers. Such reasons for discharge are not contrary to 4 law. The trial court did not err in granting appellee's motion as 4 Affidavits filed in support of appellee's motion indicated that the appellant's password appeared on a majority of the postal complainant's rental contracts; that the male suspect central to the post office's inquiry was seen leaving the Euclid location with papers in his hands; that he had been photographed using a postal complainant's credit card at an automated teller machine; that he was driving a Budget Rent A Car at the time of the use of the credit card fraud and that his rental contract demonstrated appellant's password. Hence, on or about the time of appellant's discharge, appellee was in receipt of authoritative information that appellant had committed a gross violation of her duties and was therefore subject to immediate dismissal pursuant to the "Dismissal" provisions of the Handbook - 10 - appellant has failed set forth specific, triable facts with respect to whether she was an employee-at-will and could be discharged for any lawful reason. See, Civ.R. 56(D) and Celotex, supra. Her first and second assignments of error are overruled. III THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BECAUSE AS A MATTER OF LAW, PLAINTIFFS- APPELLANTS' CLAIM THAT THE WRONGFUL DISCHARGE WAS IN VIOLATION OF THE PUBLIC POLICY OF THE STATE OF OHIO SHOULD HAVE OVERCOME A MOTION FOR SUMMARY JUDGMENT. In her third assignment of error, appellant claims that she was the subject of a criminal investigation and that appellee's decision to discharge her because he no longer wished to conduct an employment relationship through her attorney violated her constitutional right to counsel. Relying on Greeley v. Miami Valley Maintenance (1990), 49 Ohio St.3d 228 appellant claims that which states as follows: Depending on what has occurred, we will, in most cases, discuss any problems with you, addressing the specific actions necessary on your part to correct the problem. You may be put on suspension or probation if your manager feels it is warranted. Length of time for either will be determined by the nature of the violation. There are certain violations that are considered gross infractions of company policy. These are grounds for IMMEDIATE DISMISSAL: there will be no discussions. They include, but are not limited to: 11. Unauthorized possession, use, or theft of property or funds of the company, customer, or employees ... . Handbook, Page 52-53. - 11 - her discharge violated public policy. Appellant's arguments are devoid of merit for the following reasons. First, the public policy exception set forth in Greeley applies to situations where the discharge of an employee-at-will results in 5 the violation of a specific statute. Appellant has failed to demonstrate that her discharge resulted in any statutory violation. Second, appellant has failed to demonstrate that she was the 6 subject of any formal, criminal investigation or prosecution. Third, contrary to appellant's novel and unsupported assertion, the constitutionally protected right to counsel does not attach to employer/employee meetings. Appellant's third assignment of error is overruled. The summary judgment of the trial court is affirmed. 5 In Greely, an at-will employee was discharged in violation of R.C. 3113.213(D) which prohibits discharge or discipline based upon the withholding of wages for child support. 6 Sworn affidavits indicated that appellant was not accused of any criminal conduct; that Inspector Drodofsky's purpose in interviewing her was to obtain information regarding a particular male suspect and that appellee's purpose in meeting with the appellant was to discuss operations and to provide appellant with an opportunity to explain how credit information left the possession of the company. - 12 - It is ordered that appellees recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., AND MCMONAGLE, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .