COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70658 ROY CHILES, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION CUYAHOGA COMMUNITY COLLEGE, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 5, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 237887 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Daniel J. Ryan 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: Barton A. Bixenstine Johnine P. Barnes-Pannell ULMER & BERNE 1300 East Ninth Street 900 Bond Court Building Cleveland, Ohio 44114-1583 -2- NAHRA, J.: Appellant, Roy Chiles, worked for appellee, Cuyahoga Community College (hereinafter "Tri-C"), from 1970 until he was laid off in August, 1992. Appellant worked in various positions within Tri- C's financial aid department. In 1988, appellant settled charges of discrimination brought against Tri-C with the Ohio Civil Rights Commission (hereinafter "OCRC"). As a result of the settlement, appellant was given a one-year position created for him in the financial aid department at Tri-C's Metropolitan Campus. He maintained this unique position until his layoff. Appellant initiated both this lawsuit and new charges of discrimination and retaliation with the OCRC. The OCRC found that there was no probable cause to support appellant's charges. Appellant appealed this decision to the Cuyahoga County Court of Common Pleas which affirmed the finding. In his complaint, appellant charged that Tri-C discriminated against him in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. 621 et seq.; that Tri- C violated his employment contract by laying him off; that Tri-C was promissorily estopped from laying him off; and that Tri-C violated its severance pay policy. Appellee moved for summary judgment, arguing that appellant did not make out a prima facie case of age discrimination; that appellant could not maintain an action for wrongful discharge or promissory estoppel because he was an at-will employee who was made no promises of future employment; and that it had no severance pay -3- policy. Appellee, by leave of court, supplemented its motion by arguing that the Cuyahoga County Court of Common Pleas' affirmation of the OCRC finding precluded appellant from maintaining this action under the principle of res judicata. Appellant's response to the summary judgment motion neither provided evidence in the form required by Civ.R. 56 to support his argument nor did it cite to any deposition testimony filed with the court. The trial court granted summary judgment for appellee on all counts of the complaint. I. Appellant has listed three assignments of error; the second will be considered first. It states: II. THE COURT COMMITS PREJUDICIAL ERROR WHEN IT GRANTS SUMMARY JUDGMENT WHEN IT USES AS ITS BASIS FACTUAL FINDINGS WHEN NO EVIDENCE IS BEFORE THE COURT TO SUPPORT SUCH FINDINGS. Appellant complains that the court improperly considered certain types of evidence in ruling on appellee's motion for summary judgment. Civ.R. 56(C) states in part that: [S]ummary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. This court has held in Brown v. Ohio Casualty Insurance Co. (1978), 63 Ohio App.2d 87, 409 N.E.2d 253, that: When ruling on a motion for summary judgment, the trial court in its discretion may consider documents other than those specified in Civil Rule 56(C) in support of the motion where no objection has been raised. -4- Accord Holmes v. Community College of Cuyahoga County (1994), 97 Ohio App.3d 678, 647 N.E.2d 498; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 523 N.E.2d 902; Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 456 N.E.2d 1262. The Supreme Court of Ohio has noted that the evidence to be considered in deciding a motion for summary judgment consists of the evidentiary materials enumerated by Civ.R. 56(C). See Dresher v. Burt (1996), 75 Ohio St.3d 280,293, 662 N.E.2d 264, 273-74. See, also, State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 663 N.E.2d 639 (Douglas, J. concurring in judgment only). However, because appellant did not object to the evidence presented in appellee's motion for summary judgment, he cannot now claim the consideration of the evidence as error. Brown, supra. Accordingly, appellant's second assignment of error is overruled. II. Appellant's third assignment of error states: III. IT IS ERROR TO CONSIDER A SUMMARY JUDGMENT MOTION AFTER ACTION IS SET FOR TRIAL VIOLATES THE CLEAR MANDATE OF THE RULE THAT LEAVE OF COURT FIRST BE GRANTED. (SIC.) Appellant claims the court erred by considering appellee's motion for summary judgment without first granting leave to file. The court's Case Management Conference Decree and Order, filed July 12, 1994, states "ALL MOTIONS DISPOSITIVE OR OTHERWISE must be filed with the court on or before 12-16-94; opposing briefs within 30 days of filing." (Emphasis sic.) Appellee's motion for summary -5- judgment was filed on December 16, 1994. The court did not err in considering the motion, nor was appellant prejudiced in any way as he was not required by the court to respond to the motion until March 29, 1995. Appellant's third assignment of error is without merit. III. Appellant's first assignment of error states: I. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 OF THE OHIO RULES OF CIVIL PROCEDURE AS TO ALL COUNTS OF APPELLANT'S COMPLAINT BECAUSE THERE EXIST MATERIAL ISSUES OF FACT WHICH CAN ONLY BE DETERMINED AT TRIAL. A grant of summary judgment is reviewed de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A party is entitled to summary judgment where the 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 conclusion, 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, 364 N.E.2d 267, 274. In order to avoid summary judgment under the ADEA, appellant must demonstrate that he has set forth a prima facie case of a violation. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second,if the plaintiff succeeds in proving the prima facie case, the burden shifts to the -6- defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Barnes v. GenCORP Inc. (C.A.6 1990), 896 F.2d 1457, 1464 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (citations omitted)). A plaintiff generally makes a prima facie case of age discrimination where he shows that he is over forty years of age, is qualified for the position, was discharged, and was replaced by a younger person. Barnes, 896 F.2d at 1465, n.9. However, where the defendant claims that plaintiff was discharged due to a reduction in the workforce, if plaintiff cannot show that he was replaced by a younger person, he must present some direct, circumstantial, or statistical evidence that the defendant "singled out the plaintiff for discharge for impermissible reasons." Barnes, 896 F.2d at 1465 (quoting LaGrant v. Gulf and Western Mfg. Co. (C.A.6 1984), 748 F.2d 1087); see, also, Murphy v. East Akron Community House (1989), 56 Ohio App.3d 54, 564 N.E.2d 742. In this case, Tri-C claimed that Chile's position was eliminated due to a reduction of force of its non-teaching personnel, supporting its argument by affidavit. Under Barnes, appellant must produce additional evidence that Tri-C improperly used his age as a factor in eliminating his position. Appellant has failed to cite to anything in the record which so indicates. -7- Accordingly, the trial court properly granted summary judgment for Tri-C on appellant's ADEA claim. Appellant has alleged that he was laid off in violation of his employment contract and that Tri-C was promissorily estopped from laying him off. In order to maintain an action for violation of an employment contract, appellant must show that he was not an at- will employee, capable of having his employment terminated at any time for any reason. See Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 100, 483 N.E.2d 150, 151 (syllabus paragraph one). In its motion for summary judgment, appellee cites to appellant's deposition testimony to demonstrate appellant was an at-will employee who was not promised future employment. Appellant refers only to his one-year contract in 1988 to create an inference that he was not an at-will employee. However, appellant admits in his appellate brief that the contract was only for one year. Appellant has not pointed to anything in the record to disprove that after 1989 he was not an at-will employee. Because of this, appellant cannot maintain an action for breach of an employment contract. In order to maintain an action for promissory estoppel in the employment relationship, appellant must show that appellee made representations that he could have reasonably relied upon; that appellant did in fact rely upon those representations; and that his reliance was to his detriment. See Mers, 19 Ohio St.3d at 101, 483 N.E.2d at 151 (syllabus paragraph 3). Appellant admitted within his deposition that he was not personally promised continued employment. Appellant cites only to Tri-C's policy entitled -8- "Reduction in Force for Administrative and Support Staff Employees" in support of his claim for promissory estoppel. However, the policy in effect at the time of appellant's layoff only entitled him to "receive vacancy postings from the office of personnel relations for a period of one year from the date of separation." This policy does not create a justifiable reliance on the part of employees to continued employment. Additionally, appellant does not complain that this policy was violated by appellee. Appellant also charged that Tri-C violated its policy of awarding severance pay to discharged and laid off employees. Appellee denies having any policy regarding severance pay. Appellant has set forth no evidence that such a policy existed at the time of his layoff. Therefore, appellant has not demonstrated that a genuine issue of material fact exists to prevent summary judgment against him. For these reasons, appellant's first assignment of error is overruled and the grant of summary judgment by the trial court is affirmed. Because the record supports the trial court's grant of summary judgment, this court need not address the parties' argument as to whether or not the Cuyahoga County Common Pleas Court affirmation of the OCRC finding constitutes a bar to further prosecution of this matter under the principle of res judicata. Judgment affirmed. -9- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .