COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70943/71257 KENNETH JOHNSON, M.D. ) JOURNAL ENTRY ) Plaintiff-Appellant ) AND ) -vs- ) OPINION ) LAKEWOOD HOSPITAL, ET AL. ) ) Defendants-Appellees ) Date of Announcement of Decision SEPTEMBER 4, 1997 Character of Proceeding Civil appeals from Court of Common Pleas Case No. 282510 Judgment Affirmed Date of Journalization Apppearances: For Plaintiff-Appellant: For Defendants-Appellees: JAMES D. INGALLS, ESQ. GEORGE L. McGAUGHEY, ESQ. The Standard Building DAN L. MAKEE, ESQ. 20th Floor McDonald, Hopkins, Burke 1370 Ontario Street and Haber Co., L.P.A. Cleveland, Ohio 44113 2100 Bank One Building 600 Superior Avenue, East Cleveland, Ohio 44124 2 JAMES M. PORTER, J.: Defendant-appellant Kenneth Johnson, M.D. appeals from a jury verdict and trial court rulings in favor of defendants-appellees Lakewood Hospital, Lakewood Health Care Foundation and Steven Suess, M.D. arising out of the failure to renew Dr. Johnson's annual employment contract with the Foundation. Plaintiff challenges the trial court's directed verdicts on claims of defamation, tortious interference, intentional and negligent infliction of emotional distress and contends the jury verdicts on implied contract and promissory estoppel were against the manifest weight of the evidence. We find no error and affirm. Plaintiff is a physician employed by defendant Lakewood Health Care Foundation ("Foundation") from early 1991 through July 9, 1994. The Foundation is an Ohio non-profit corporation doing business as Family Practice Associates ("F.P.A."), which provides health care services at offices in Lakewood, Rocky River, Cleveland and Westlake, Ohio. Lakewood Hospital Association manages the Foundation. Defendant, Dr. Steven Suess, was also employed as a physician by the Foundation and served as the Administrative Head of F.P.A., which consisted of a group of six physicians. In April 1993, plaintiff met with Paul Sahney, Treasurer/CFO for the Foundation and asked for a two-year contract to replace the one expiring on April 30, 1993. Sahney requested that plaintiff sign a one-year contract which would have a common expiration date (March 31, 1994) with the other F.P.A. physicians. Johnson testified that he understood this to mean that his contract would 3 be automatically renewed along with the other physicians. Sahney testified that no assurances were given to plaintiff concerning future employment. As part of his professional duties, plaintiff was required to provide "on call" coverage of the group's patients on nights, weekends and holidays as scheduled on a rotating basis with his colleagues. On occasions, starting in July 1993 through December 31, 1993, plaintiff failed to perform his on-call duties, at times requiring off-duty physicians to fill in for him. At other times, plaintiff failed to respond to telephone calls from patients seeking information or test results. As Administrative Head of F.P.A., Dr. Suess spoke to plaintiff about these problems starting in December 1993. There was evidence that during this period Dr. Johnson was under considerable stress and turmoil from personal affairs and this affected his professional performance. The unavailability problems continued, with two more incidents occurring in January 1994. At a F.P.A. meeting of the group physicians on January 28, 1994, Dr. Suess again expressed his concerns about defendant's "on-call deficiencies and asked for a vote on terminating plaintiff's services. Instead, the group voted to monitor plaintiff's performance to see if it would improve. Plaintiff was so informed at the meeting. Plaintiff believed Dr. Suess' attempts to fire him were without authority and were inspired by Dr. Johnson's earlier suggestion to rotate the office of Administrative Head, which Dr. Suess had held since 1990. 4 After the January 28 meeting, plaintiff went to Paul Sahney, to complain about the statements made by Dr. Suess at the meeting. Plaintiff surreptitiously tape-recorded his conversation with Sahney. The tape was admitted in evidence at the trial. (Pltf. Ex. X). Sahney told plaintiff Dr. Suess had no authority to fire him, not to worry about his job and they would try to work things out between him and F.P.A. Sahney also told him that if things did not work out between him and F.P.A., Sahney would try to help plaintiff with locating some other practice situation. Sahney did not promise plaintiff that his employment agreement with F.P.A. would be renewed. In April 1994, another incident occurred in which plaintiff failed for a week to respond to a lung-cancer patient's repeated telephone calls for test results and failed to schedule that patient for an appointment with a specialist. When plaintiff finally spoke to the patient, he told the patient to seek an appointment with a specialist, rather than scheduling the patient himself to see the specialist. The patient was unable to get scheduled for weeks. The patient complained about plaintiff to Dr. Tina Black, one of the other F.P.A. physicians. Dr. Black was concerned and reported this incident in writing to Dr. Suess. Later in April, plaintiff, who was on-call, neglected to see an F.P.A. patient hospitalized after complicated surgery, despite instructions from Dr. Black. The patient, who was a nurse, informed Dr. Black that plaintiff had not seen her, a fact confirmed by the patient's 5 chart. Plaintiff admitted he normally made a chart entry when he saw a patient and could not explain why the chart had no entry. Plaintiff testified that he spoke to the patient during his visit. As a result of these episodes, the other F.P.A. physicians met in mid-April to discuss their continued concerns about plaintiff. They unanimously agreed to recommend to Paul Sahney that plaintiff's employment agreement (which had expired March 31, 1994) not be renewed. Sahney informed plaintiff of the non-renewal. In May 1994, plaintiff was offered a short-term, three month contract while seeking alternate employment, which he rejected. Plaintiff was allowed to continue working for two months and was informed that July 9, 1984 would be his last day. However, plaintiff began not to submit the billing forms on his patients which prevented F.P.A. from timely billing patients for his services. Plaintiff's employment with F.P.A. was terminated, effective July 9, 1994, but he failed to show up for work on his last day to see his scheduled patients, causing disruption in the office. Under the three month contract rejected by plaintiff, he could have continued to see his patients while he obtained a new place of business. At the end of the three month period, plaintiff's patients would be scheduled to see other F.P.A. physicians. The contract also prohibited plaintiff's solicitations of any patients served by F.P.A. It was understood by both parties, however, that plaintiff's old patients were free to leave F.P.A. and seek treatment from plaintiff. 6 Plaintiff did agree to provide Sahney and F.P.A. with his new office address, location and phone number so that F.P.A. could send letters out to his patients informing them of his new practice address. Plaintiff never provided the promised information. Nor did he ever provide Sahney with his voicemail number or tell him he would like F.P.A. to use a voicemail number to contact him. Plaintiff testified that Sahney and he were not on speaking terms, at that point. (Tr. 207). Even after establishing his new office in Solon in November 1994, plaintiff still failed to provide this information to F.P.A. Had plaintiff provided a new office address or telephone number, F.P.A. would have forwarded that information to patients calling the F.P.A. office and also by letter, as Sahney had previously informed plaintiff. Following plaintiff's departure, when his patients called for appointments they were informed that plaintiff was no longer with the group. The patients were offered an appointment with another F.P.A. physician. If the patients asked for a new office address or telephone number for plaintiff, they were informed that F.P.A. did not have that information. Finally, near the end of July or early August 1994, when some of F.P.A.'s staff employees saw plaintiff's advertisement in the newspaper they provided the advertised voicemail number to people calling for plaintiff. F.P.A. did not try to keep patients from contacting plaintiff. Some patients who inquired about plaintiff's whereabouts were also informed that he had mentioned the possibility of moving to 7 Florida. Before leaving F.P.A., plaintiff had informed Sahney that he was considering taking a new job in Florida, a matter he also mentioned to his medical assistant, Judy Spath. Instead of notifying patients of his departure by a mutually agreeable letter through F.P.A., plaintiff unilaterally decided to solicit F.P.A. patients by posting a sign outside the F.P.A. door in a vacant office window. His sign could be seen by all F.P.A. patients walking into the office. Defendants considered the sign an inappropriate and unprofessional solicitation of F.P.A.'s patients. The sign was taken down by the landlord upon request by his tenant, F.P.A. Plaintiff secured part-time employment with Brunswick Immediate Care Center in July 1994, Curtiss Clinic in September 1994 and full-time employment with Mt. Sinai Hospital in November 1994, at which time he opened his Solon office. Plaintiff made approximately $15,000 more in yearly compensation as an employee of Mt. Sinai Hospital and Curtiss Clinic than he made when employed by the Lakewood Foundation. Plaintiff's claim for lost income on his breach of contract and promissory estoppel claims amounted to $22,000. Plaintiff had also inquired about employment with Dr. Weeks at Columbia Urgent Care. When contacted by Dr. Weeks concerning plaintiff's prior employment with F.P.A., Sahney advised that there had been some issues with plaintiff. Dr. Weeks denied he had been told not to hire plaintiff. On December 23, 1994, plaintiff filed a seven count complaint against defendants Lakewood Hospital, the Foundation and Dr. Suess, 8 asserting: breach of implied contract, promissory estoppel, defamation, tortious interference with prospective economic advantage, tortious interference with an existing business relationship, and intentional and negligent infliction of serious emotional distress. Defendants' motion for summary judgment was denied and the matter proceeded to trial. On May 30, 1996, a six day jury trial commenced. At the end of plaintiff's case-in-chief, the trial court granted defendants' motion for a directed verdict on plaintiff's Count IV (defamation) and Count V (tortious interference with prospective economic advantage). At the close of all the evidence, the trial court granted defendants' motion for a directed verdict on Count III (tortious interference with existing business relationship) and Count VI and VII (intentional and negligent infliction of serious emotional distress). On June 6, 1996, the jury returned a verdict in favor of defendants on the remaining counts, Count I (breach of implied contract) and Count II (promissory estoppel). The jury also found in favor of the Foundation on its counterclaim for breach of contract, but awarded no damages against plaintiff. Plaintiff's motion for new trial was denied by the trial court on June 28, 1996, and this timely appeal ensued. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. 9 I. THE TRIAL COURT ERRED AT THE CONCLUSION OF PLAINTIFF'S CASE IN CHIEF WHEN IT GRANTED DEFENDANTS' MOTION FOR A DIRECTED VERDICT ON PLAINTIFF'S CLAIMS OF DEFAMATION AND TORTIOUS INTERFERENCE WITH A PROSPECTIVE ECONOMIC ADVANTAGE. The standard for granting a directed verdict is found in Civ.R. 50(A)(4), which states: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issues reasonable minds could come to but one conclusion upon the evidence submitted and the conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. In considering a motion for a directed verdict, the court does not weigh the evidence nor try the credibility of witnesses. Strothers v. Hutchinson (1981), 67 Ohio St.2d 282, 284. The court is required to construe the evidence presented most strongly in favor of the non-moving party. A motion for directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to such party. The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, 73. As this Court has previously held, a trial court must direct a verdict in favor of a defendant where there is no evidence tending to prove an essential element of the plaintiff's cause of action. Kubiszak v. Rini's Supermarket (1991) 77 Ohio App.3d 679, 686. We find the trial court properly directed a verdict on the 10 defamation and tortious interference with economic advantage claims advanced by plaintiff. This Court recently set forth the requirements for a defamation claim as follows in Burkes v. Stidham (1995), 107 Ohio App.3d 363, 371: A defamation claim requires the plaintiff to establish that the statement made to a third person was actionable. Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 184, 644 N.E.2d 1038. The false publication must cause injury to the plaintiff's reputation, expose him to public hatred, contempt, ridicule, shame or disgrace, or affect him adversely in his trade or business. Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359, 365, 588 N.E.2d 280. The recipient must have understood the defamatory meaning of the published statement. Smith, supra. It is a question of law whether a statement is capable of carrying a defamatory meaning. Stow v. Coville (1994), 96 Ohio App.3d 70, 74, 644 N.E.2d 673, 675. Plaintiff argues that defendants or their employees made false and defamatory statements to patients concerning his whereabouts and Lakewood Hospital defamed plaintiff when Sahney spoke to Dr. Weeks, Director of Columbia Urgent Care and indicated there had been a disagreement. (Aplt's Brf. at 9, 17). However, the testimony cited by plaintiff in his brief does not constitute evidence that defendants made false and defamatory statements about him. When patients called to make an appointment they were told that Dr. Johnson was no longer with the practice and the F.P.A. did not have a new address or telephone number for him. It was mentioned to some patients that plaintiff had spoken about possibly 11 relocating to Florida. These statements were not shown to be false or defamatory. Plaintiff conceded that he did not give F.P.A. his new office address or phone number even after he opened his new office and he had talked to Sahney and his F.P.A. assistant, Judy Spath, about possibly moving to Florida. It is a question of law for the Court whether certain statements alleged to be defamatory are actionable. Mendise v. Plain Dealer Publishing Co. (1990), 69 Ohio App.3d 721, 726; Burkes v. Stidham, supra, at 371. Statements concerning defendants' awareness or lack thereof respecting plaintiff's whereabouts taken in their ordinary meaning did not expose plaintiff to public hatred, contempt or ridicule, nor do they impugn his integrity or injure him in his trade or business. Accordingly, such words do not constitute defamation as a matter of law. Moreover, under Ohio law, the innocent construction rule must be applied to determine whether others might reasonably understand a statement to defame another. If allegedly defamatory words are susceptible to two meanings, one defamatory and one innocent, the defamatory meaning must be rejected and the innocent meaning adopted. Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of America (1983), 6 Ohio St.3d 369, 372; Mendise, supra, at 726; Van Deusen v. Baldwin (1994), 99 Ohio App.3d 416, 419; Giering v. Nashville Productions, Inc. (April 18, 1996), Cuyahoga App. No. 68841, unreported at 3. The statements in question fall within the ambit of the innocent construction rule. 12 Plaintiff's second argument under this assignment of error asserts that defendant Lakewood Hospital defamed plaintiff through a conversation between Sahney and Dr. Weeks, Director of Columbia Urgent Care. We find this contention is also without merit. Dr. Weeks testified that when he called Sahney to inquire about plaintiff's prior employment, Sahney simply stated there had been some disagreement, but nothing beyond that. This was in fact true and also subject to an innocent construction - in a disagreement, either party could be right or wrong. Plaintiff's inference that he was not hired due to something Sahney said was undercut by Weeks' testimony that plaintiff never completed his application for the job at Columbia Urgent Care. In any event, we find the challenged statements are subject to a qualified privilege. This doctrine bars defamation actions based upon communications made in good faith, on any subject matter in which the person communicating has a duty to inform others concerning matters in which the parties have an interest. Jacobs v. Frank (1991), 60 Ohio St.3d 111, 113-14; Hahn v. Kotten (1975), 43 Ohio St.2d 237, 243-44. Where the alleged defamatory communications are not in dispute, the determination of whether the occasion gives rise to the privilege is a question of law for the court. A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Construc. Trades Council (1995), 73 Ohio St.3d 1, 11-12. A qualified privilege exists as to communications of an employer concerning the discharge of a former employee to that employee's prospective employer. Rinehart v. Maiorano (1991), 76 13 Ohio App.3d 413, 421; Rainey v. Shaffer (1983), 8 Ohio App.3d 262, 264. In order to prevail over this privilege, plaintiff must make a showing that defendants exceeded the privilege by acting with actual malice. Evely v. Carlon Co. (1983), 4 Ohio St.3d 163, 165; Hahn v. Kotten (1975), 43 Ohio St.2d 237, 244. In the context of a defamation action, a person acts with actual malice when they act with knowledge that the statements are false or with reckless disregard of whether they were false or not. Hahn, supra, at paragraph two of the syllabus. This privilege would apply equally to statements made by F.P.A. staff to patients inquiring about plaintiff's whereabouts and to statements made by Sahney in response to Dr, Weeks' inquiry about plaintiff's former employment. In such cases, the relationship between the parties justifies the responsive communication made by the defendant, so that responsive communications made in good faith, on the subject matter being inquired about, are not actionable as defamation. Jacobs v. Frank (1991), 60 Ohio St.3d 111, 114; A & B Abell Elevator Co., supra at 8. F.P.A. clearly had an interest in responding to inquiries from its own patients who had been seen by plaintiff as a physician- employee of F.P.A. The patients were billed by F.P.A., not by the individual physician, and were considered F.P.A. patients. The F.P.A. staff was entitled to inform the patients that plaintiff was no longer employed by F.P.A. and to respond to patient inquiries about his whereabouts as best they knew. See 14 Giering, supra, where directed verdict was affirmed when employees advised bar patrons who inquired that the plaintiff bartender had been discharged for theft. Accordingly, under Ohio law, a qualified privilege attached to the communications made by F.P.A. personnel to the patients. See A & B-Abell Elevator Co., supra; Hahn v. Kotten (1975), 43 Ohio St.2d 237, 243. Similarly a qualified privilege attached to the communication from Sahney to Dr. Weeks, in response to Weeks' inquiry concerning plaintiff's former employment at F.P.A. Rinehart, supra at 421; Krause v. Case Western Reserve University (Dec. 19, 1996), Cuyahoga App. No. 70712, unreported. As such, those communications were subject to the qualified privilege unless plaintiff offered sufficient proof to show that the communications were made with actual malice (knowledge the statements were false or while acting with reckless disregard as to their truth or falsity). A & B-Abell Elevator Co., supra, at 10- 11; Jacobs, supra, at 111 (paragraph 2 of syllabus). Because plaintiff offered no proof of actual malice, a directed verdict was also warranted on the separate ground of qualified privilege. For the foregoing reasons, we find no error in the directed verdict on the defamation claims. In this assignment of error, plaintiff also claimed that the defendants tortiously interfered with prospective economic advantages with patients and with Columbia Urgent Care (Dr. Weeks' organization). Disposition of this branch of the argument is 15 governed in large part by the same principles hereinbefore discussed. As stated in A & B-Abell Elevator Co., supra, at 14: The torts of interference with business relationships and contract rights generally occur when a person, without a privilege to do so, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another, or not to perform a contract with another. [Citations omitted]. * * * In such cases the law has generally required proof that the defendant has acted maliciously. Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 16, 552 N.E.2d 207, 212-213. The standard of malice required to be shown in these cases, as well as the determination of privilege, may be different from what it is with respect to defamation cases. The question here, however, is whether the actual-malice standard required to defeat a qualified privilege in a defamation claim under Jacobs, supra, must also be met for tortious interference and disparagement claims based on the same protected conduct or statements. We hold that it does. As previously recognized in this opinion, plaintiff offered no evidence identifying any individual working for defendants who, knowing the truth, falsely denied to patients knowledge of plaintiff's whereabouts, office address or telephone number. Plaintiff testified only that he had given a voicemail number to two staff employees of F.P.A. not earlier than July 15, 1994, one week after he left the office. Plaintiff claimed that he gave his new phone number to Judy Spath, his former medical assistant, and Barbara Lesniak, a receptionist. Ms. Spath, an admitted friend of the plaintiff, testified that plaintiff did not give his new phone 16 number or address to the staff employees of F.P.A. Ms. Spath testified that the staff first learned of plaintiff's new phone number from an advertisement plaintiff ran in the newspaper. Barbara Lesniak was not called as a witness at trial. But, there was no evidence that these two employees made any false statement to any patient or even talked to any patient requesting such information. Nor did plaintiff offer any evidence proving that Sahney intentionally or maliciously interfered with any prospective contractual relation plaintiff claimed to have with Columbia Urgent Care. Based on the foregoing, we find that a directed verdict was properly entered on the defamation and tortious interference with economic prospects claims. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED AT THE CLOSE OF ALL THE EVIDENCE WHEN IT GRANTED DEFENDANTS' MOTION FOR A DIRECTED VERDICT ON PLAINTIFF'S CLAIMS OF TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP,INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS AND NEGLIGENT INFLICTION OF SEVERE EMOTIONAL DISTRESS. The tort of interference with an existing business relationship and contract rights generally falls within the same principles previously discussed in this opinion. An essential element of the tort of intentional interference with contract is interference by someone who is not a party or agent of the party to the contract or relationship at issue. Garg v. Benkataram (1988), 54 Ohio App.3d 171; Erebia v. Chrysler Plastic Products Corp. (C.A.6, 1989), 891 F.2d 1212, 1216. This 17 Court has recently applied this rule in Condon v. Body, Vickers & Daniels(1994), 99 Ohio App.3d 12, 22 (law firm office manager was not a third party subject to liability for tortiously interfering with a contract to which the Firm was a party. ). Generally, a claim for tortious interference with a business or economic relationship requires proof that "one who, without a privilege to do so, induces or otherwise purposely causes a third party not to enter into, or continue, a business relationship with another, or perform a contract with another is liable to the other for the harm caused thereby." Brahim v. Ohio College of Podiatric Medicine (1994), 99 Ohio App.3d 479, 489; Ashcroft v. Mt. Sinai Medical Center (1990), 68 Ohio App.3d 359, 365 (quoting Juhasz v. Quik Shops, Inc. [1977], 55 Ohio App.2d 51, 57). Such actions must be intentional, because Ohio does not recognize negligent interference with a business relationship. See Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 186; Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 404. In Anderson v. Minter (1972), 32 Ohio St.2d 207, the Ohio Supreme Court found that no cause of action will lie for an employee's claim that her supervisor interfered with her employment where "the act complained of is within the scope of a defendant's duties." Id. at 213. See, also, Hill v. Gatz (1979), 63 Ohio App.2d 170, 175 ("in the instant matter, appellees *** held supervisory positions ***. Their statements were made within the scope of their duties. Therefore, appellant has failed to state a claim upon which relief 18 can be granted"); Rayel v. The Wackenhut Corp., et al. (June 8, 1995), Cuyahoga App. No. 67459, unreported at 14 (quoting Everhart v. Francioli [April 29, 1993], Cuyahoga App. No. 62377, unreported at 15). ("[T]his court has unequivocally stated that, 'a supervisor of an employee cannot be held liable for tortious interference with contract.' *** As such, appellant's claim involved a suit by a subordinate employee against a supervisor. Under the law of this district, no such action can lie. ). The essence of plaintiff's tortious interference claim with an existing business relationship is directed at Dr. Suess' intervention as head of the F.P.A. group in addressing complaints about plaintiff's on-call failures. Dr. Suess had served as Administrative Head of F.P.A. since 1990. His duties included monitoring the performance of the other physicians employed by F.P.A. and making sure that any physician performance problems were addressed. Because of the increasing number of complaints about plaintiff's performance, in December 1993, Dr. Suess became concerned about plaintiff's unavailability or lack of responsiveness. He brought those complaints to the attention of the other F.P.A. physicians after first talking to plaintiff and to the Board of the Foundation. Suess served as liaison between F.P.A., the Foundation and its Board. On January 24, 1994, Dr. Suess met with Jules Bouthillet and Sahney, two members of the Board, to inform them of these complaints. The Board members concurred that these complaints should be brought up at the group 19 meeting on January 28, 1994. Sahney testified the it was appropriate for Dr. Suess to discuss these problems with the other F.P.A. physicians. Dr. Suess raised the issue of whether plaintiff should remain a member of the group on January 28, 1994. The group decided instead to monitor his performance for several months, document any problems and address the issues again at a later date. The results of the group meeting were reported by Dr. Suess to Sahney. Sahney testified that Dr. Suess' action was appropriate and he had authority to monitor the performance of plaintiff. Plaintiff admitted that at the January 28, 1994 meeting Suess had raised these issues and he was informed his performance was going to be monitored, i.e.,he would be, in his own words, on probation. When the problems with plaintiff's performance continued, the other F.P.A. physicians unanimously recommended that plaintiff's employment agreement, which had expired on March 31, 1994, not be renewed. We fail to see that Dr. Suess acted outside the scope of his responsibility. His actions fell squarely under the privilege of one who was acting for his principal in the contractual relationship. We also find that plaintiff failed to prove the elements required under Ohio law for the tort of intentional infliction of serious emotional distress. Defendants' motion for a directed verdict on this claim was properly granted. We recently stated the well-established elements for the tort of intentional infliction of emotional distress in Dickerson v. 20 Internat. Un. Auto Wkrs. Un. (1994), 98 Ohio App.3d 171, 178-79, as follows: The essential elements that plaintiffs must prove to establish a claim of intentional infliction of emotional distress are summarized as follows by this court in Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359, 366, 588 N.E.2d 280, 284: "A claim for intentional infliction of serious emotional distress requires proof of four elements: "'*** 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor's conduct was so extreme and outrageous as to go "beyond all possible bounds of decency" and was such that it can be considered as "utterly intolerable in a civilized community," Restatement of Torts 2d (1965) 73, Section 46, Comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that "no reasonable man could be expected to endure it," Restatement of Torts 2d 77, Section 46, Comment j.' Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103." In attempting to define what constitutes extreme and outrageous conduct, Ohio has adopted Sections 46(1) and (2) of the Restatement of Law 2d, Torts (1965), and the comments thereto as standards to be used in deciding emotional distress cases. Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374- 375, 6 OBR 421, 426, 453 N.E.2d 666, 671-672, the case in which the Ohio Supreme Court first recognized the tort at issue, quotes Comment d of the Restatement in describing the standard: "'[It] has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized 21 by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been 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. Generally the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" "'The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. ***'" Followed in Reamsnyder v. Jaskolski (1984), 10 Ohio St.3d 150, 153, 10 OBR 485, 487, 462 N.E.2d 392, 394; Ashcroft v. Mt. Sinai Med. Ctr., supra, 68 Ohio App.3d at 366, 588 N.E.2d at 284; Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103. The conduct must also be viewed in context to determine what is "beyond all possible bounds of decency *** and utterly intolerable in a civilized community." As this court has previously noted: "Ohio courts have consistently recognized that it is essential to view such conduct in context. There are situations naturally fraught with antagonism and emotion where a person must be expected to endure the resultant antagonism and mental anguish." Stepien v. Franklin (1988), 39 Ohio App.3d 47, 51, 528 N.E.2d 1324, 1330. 22 Plaintiff proved no conduct by defendants 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. To the contrary, the evidence showed that plaintiff failed to carry out his contractual duties as a physician-employee of F.P.A. He was then counseled as to the need to correct these deficiencies. When he failed to do so and committed additional breaches of duty, his contract was not renewed. A plaintiff may not sustain a claim for emotional distress where the defendant does no more than insist upon its legal rights in a permissible way, even if such insistence causes some type of emotional distress. Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73; see, also, Schacht v. Ameritrust Company N.A. (March 17, 1994), Cuyahoga App. No. 64782, unreported; Brzozowski v. Stouffer Hotel Co. (1989), 64 Ohio App.3d 540, 544. Moreover, the qualified privilege defense discussed earlier is also applicable to actions for intentional infliction of emotional distress and, on this additional ground, a directed verdict was appropriate. See Smith v. Ameriflora 1992, Inc., supra, at 189; Burkes v. Stidham, supra, at 375; Bartlett v. Daniel Drake Mem. Hosp. (1991), 75 Ohio App.3d 334, 340. Plaintiff produced no evidence that defendants caused emotional distress so serious that a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances. No doubt the criticism of plaintiff's professional performance and the non-renewal of his 23 position may have seemed unfair, was unpleasant and perhaps even shocking to him. However, criticism and discharge in the workplace are a normal part of our society and less accomplished people are expected to cope effectively with such disappointments. This is one of those situations naturally fraught with antagonism and emotion where a person must be expected to endure the resulting antagonism and mental anguish. Dickerson, supra. Dr. Johnson's resilience was demonstrated by obtaining immediate physician employment. Finally, plaintiff failed to meet his burden of proof to establish that actions by defendants were the proximate cause of any serious psychic injury or ailments. The evidence showed plaintiff had undergone substantial psychiatric treatment in the past for his emotional problems, years before he became employed by F.P.A. This treatment included two prior hospitalizations in Pennsylvania and the District of Columbia for major depression caused by marital problems and the emotional trauma of broken personal relationships. Moreover, plaintiff admitted on cross- examination to suffering depression and stress during January 1994 due to personal problems he was experiencing at home, including the attempted suicide of his live-in girlfriend. Plaintiff's failure to prove this element of the tort also warranted a directed verdict on this claim. Phung v. Waste Mgt., Inc. (1994), 71 Ohio St.3d 408, 410; Reamsynder v. Jaskolski (1984), 10 Ohio St.3d 150; Lakota Loc. School Dist. Bd. Of Edn. V. Brickner (1996), 108 Ohio Ap.3d 637, 650. 24 The Court has held that a trial court should grant a directed verdict in favor of a defendant in circumstances similar to the case at bar. In Dickerson, supra, two of the plaintiffs had pre- existing psychiatric conditions. They subsequently both claimed that certain conduct of the defendant caused them to suffer serious emotional distress. Noting the lack of expert testimony on causation, this Court reversed the decision of the trial court, finding that plaintiff failed to prove his complaints of distress were caused by actionable conduct of defendants, rather than plaintiff's pre-existing psychiatric conditions. Id. at 185-87. Defendants were also entitled to a directed verdict on plaintiff's claim for negligent infliction of emotional distress. Ohio courts do not recognize a separate tort for negligent infliction of emotional distress in the employment context. Tshantz v. Ferguson (1994), 97 Ohio App.3d 693, 714; Hanley v. Riverside Methodist Hosp., 78 Ohio App. 73, 83; Hallbauer v. Koblenz (Jan. 2, 1997), Cuyahoga App. No. 69711, unreported. Assignment of Error II is overruled. 25 III. THE JURY VERDICT FOR DEFENDANTS LAKEWOOD HOSPITAL AND LAKEWOOD HEALTH CARE FOUNDATION ON PLAINTIFF'S CLAIM FOR BREACH OF AN IMPLIED CONTRACT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV. THE JURY VERDICT FOR DEFENDANTS LAKEWOOD HOSPITAL AND LAKEWOOD HEALTH CARE FOUNDATION ON PLAINTIFF'S CLAIM FOR PROMISSORY ESTOPPEL IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The test to be applied on appeal as to whether or not a judgment is against the manifest weight of the evidence was set forth as follows in Arnett v. Midwestern Ent., Inc. (1994), 95 Ohio App.3d 429, 431: We initially note that a judgment supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 8 O.O.3d 261, 262, 376 N.E.2d 578, 579. In addition, under a manifest weight of the evidence test, the court of appeals is guided by the presumption that the findings of the trial court are correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 411, 461 N.E.2d 1273, 1276. Thus, if there is competent credible evidence going to the trial court's finding that the retail buyer's order does not constitute a valid and enforceable contract, this court must affirm the judgment of the trial court. Plaintiff's claims of implied contract and promissory estoppel were based upon his allegation that during his post-group meeting with Sahney on January 28, 1994, Sahney promised to renew plaintiff's employment agreement, which expired March 31, 1994. At trial, Sahney testified that he did not tell plaintiff his employment agreement would be renewed. This conversation took place in Sahney's office when plaintiff secretly taperecorded the 26 episode. Plaintiff had just come from this meeting with Dr. Suess and the other F.P.A. physicians, where his performance had been criticized and he was told his performance would be monitored over the next several months, Sahney did not promise plaintiff that his contract would be renewed nor that his job with F.P.A. was secure. Sahney told plaintiff: No. I don't think it [the job] will be a problem. If something can't be worked out with the group we, the hospital, can help you find some other practice situation but let me see what I can do. That plaintiff read more into Sahney's words than Sahney intended to convey or felt that he was promised a contract renewal and employment security was presented to the jury which found against the plaintiff. Moreover, the jury was presented with evidence that plaintiff's written employment contract expressly prohibited oral modifications of the agreement. His contract expired March 31, 1994. Sections 9.2 and 9.3 expressly barred any oral agreements concerning the agreement or modifying any of its terms. (Deft's Ex. KK, LL, MM; Tr. 616-620). On cross-examination, plaintiff admitted that he had nothing in writing extending his employment term beyond March 31, 1994, nor did he have anything in writing signed by defendants changing the expiration date of his employment. Finally, plaintiff offered no proof that his employer had promised to renew his contract even if plaintiff failed to properly perform his duties as a physician-employee of F.P.A. In other 27 words, plaintiff did not claim he could not be fired for good cause. Defendants presented evidence that plaintiff continued to breach some duties even after the January 28, 1994 meeting with Sahney. His failure to respond for a week to telephone calls from the lung-cancer patient, his failure to schedule that patient for follow-up with a specialist, and his failure to see Dr. Black's patient when plaintiff had the on-call duty, all occurred after the January 28, 1994 meeting at which plaintiff claims he was promised his contract would be renewed. Therefore, there was substantial, competent and credible evidence that there was no promise to renew plaintiff's contract, there was no meeting of the minds on renewing the contract, and that defendants did not breach any contract with plaintiff. There was disputed evidence from which the jury could have decided the matter either way. However, the verdict is supported by the evidence and the jury verdict in favor of defendants on the implied contract and promissory estoppel claims must be upheld. Assignments of Error III and IV are overruled. Judgment affirmed. 28 It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., AND ROCCO, J., CONCUR. JAMES M. PORTER PRESIDING 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 .