COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73828 HAROLD R. KRAUSE : : JOURNAL ENTRY PLAINTIFF-APPELANT : : AND v. : : OPINION YOUNG MEN'S CHRISTIAN : ASSOCIATION : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-335272. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: David Roloff, Esq. Morris L. Hawk, Esq. Goldstein & Roloff 526 Superior Ave., E., #1440 Cleveland, Ohio 44114-1401 For Defendant-appellee: Carl H. Gluek, Esq. Heather L. Areklett, Esq. Daniel A. Ward, Esq. Thompson, Hine & Flory LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1216 -2- SWEENEY, JAMES D., J.: Plaintiff-appellant Harold Krause appeals from the trial court's order granting the motion for summary judgement of the defendant-appellee Young Men's Christian Association (YMCA). Mr. Krause filed this action for wrongful discharge, asserting age discrimination, promissory estoppel and breach of an implied contract. Subsequent to a year of part-time employment, the appellant began full time employment with the YMCA in 1965. Mr. Krause worked as an in-house maintenance mechanic and performed such duties as installing and maintaining the mechanical, heating, and air conditioning equipment. His responsibilities included performing basic pipe fitting and carpentry work, as well as attending to lock work and window glazing at the YMCA. The appellant made himself available for all emergencies, no matter when they occurred. The appellant contends that in 1977 he was promoted to maintenance foreman and property supervisor. In this capacity, his additional duties required him to dealing with outside contractors and architects. Additionally, beginning in 1990, the appellant supervised the work of Mr. Jim Butchart. From the beginning of his employment until 1994, the appellant received favorable evaluations from his supervisor, Lee Struder, then the vice-president of the YMCA. In April 1994, the YMCA hired John Greenauer as a consultant. In that capacity, Greenauer developed a marketing plan. He -3- evaluated every branch of the YMCA from a marketing perspective and conducted an internal review of the facilities and the programming offered to members. In October 1994, Greenauer was hired by the YMCA as Vice President for Facilities and Marketing. Greenauer testified during his deposition that to his knowledge, the appellant had no supervisory authority over Mr. Butchart. The appellant states that in January 1995, Greenauer demoted him to maintenance technician and from that time all requests for maintenance or repairs needing outside contractors were required to be processed through Greenauer. Several of the branches opted out of the in-house preventative maintenance program and the maintenance work required at these facilities was subcontracted to a former YMCA employee, Mr. Chuck Steidel. As of June 1995, the appellant was no longer permitted to receive compensation for his overtime hours. The appellant continued to respond to emergency requests, but did not report these hours as overtime. The appellant testified in his deposition that he had two opportunitiesto leave the employment of the YMCA, one in 1970 and one in 1974. Mr. Krause did not avail himself of these opportunities because he believed that in the long term, the retirement program at the YMCA was worth more than a present increase in salary. Mr. Krause also testified that over the years his supervisors encouraged him to remain at the YMCA because of the pension benefits. Mr. Greenaur testified in his deposition that he believed the change from in-house preventative maintenance to hiring outside -4- contractors resulted in cost and time savings for the YMCA. In his affidavit, Greenaur stated that the YMCA commissioned a study in 1995 and 1996, conducted by a professional architectural and engineering firm, called Safe and Sound. The study evaluated eleven of the YMCA's facility and program center locations and recommended replacing antiquated and uneconomical mechanical systems. Based upon this study, the YMCA developed a new maintenance policy. The new policy concentrated on using the limited resources of the YMCA to purchase new equipment which would eliminate the need for preventative maintenance. Consequently, the entire preventative maintenance department, consisting of the appellant and Mr. Butchard, was eliminated. This policy was intended to improve facilities for the membership and reduce both long and short-term costs. No new employees were hired to perform the appellant's duties, nor were other employees assigned to those tasks. Mr. Krause was terminated from his employment on March 7, 1996. The appellant was 62 years of age, and had been employed by the YMCA for 30 years. The appellant set forth three assignments of error. The first assignment of error: THE TRIAL COURT ERRED IN DETERMINING THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO PLAINTIFF'S CLAIMS FOR BREACH OF AN IMPLIED CONTRACT. The appellant asserts that the facts and circumstances of his employment create a genuine issue of material fact as to whether the YMCA was permitted to terminate his employment only for cause. Mr. Krause testified in his deposition that the YMCA had a long- -5- standing tradition to only terminate employees for cause and that his thirty years of experience reinforced this understanding. Lee Studer, the appellant's former supervisor, corroborates the appellant's understanding of this policy in an affidavit attached to the appellant's brief in opposition to the motion for summary judgment. Additionally,the appellant cites to the July 1983 version of the employee handbook, which states specifically: Term of employment - The practice of this Association shall be to maintain employment for individuals for so long as the relationship is mutually satisfactory and in accordance with the Personnel Policies and Procedures as defined herein. The appellant acknowledges that this language does not explicitly use the words for cause, but argues that the use of the term satisfactory implies a performance based standard. Since the appellant's performance evaluations were always exemplary, he asserts that the YMCA was prohibited from terminating his employment. A new employee handbook was issued in 1996, this handbook contained an at-will disclaimer. The appellant asserts that this disclaimer does not operate to obliterate the YMCA's tradition of termination only for cause. The appellant further argues that the evidence demonstrates that his position was not eliminated for economic reasons because the outside contractor's yearly fee is substantially in excess of his salary. Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from -6- the evidence that reasonable minds can come but to 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. Turner v. Turner (1993) 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977) 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. A court is permitted to grant a motion for summary judgment where all of the tests provided in Civ.R. 56 are met. See Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323. The court found where the non-moving party bears the burden of proof at trial on dispositive issues, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file. The non-moving party is required to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Id. At 324. Finally, an appellate court reviews the lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. In general, under the employment-at-will doctrine, the employment relationship between employer and employee is terminable at the will of either, thus, an employee is subject to discharge by an employer at any time, even without cause. Henkel v. Educational Research Council of Am. (1976), 45 Ohio St.2d 249. In Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, the court found two exceptions to the at-will doctrine: 1) the existence of implied or -7- express contractual provisions which alter the terms of discharge; and, 2) the existence of promissory estoppel where representations or promises have been made to an employee. To determine whether an implied agreement has arisen between the parties, the court must look to the surrounding facts and circumstances, the customs and course of dealing between the parties, company policy, and other relevant factors. Condon v. Body, Vickers and Daniels (1994), 99 Ohio App.3d 12, citing to Mers, supra. In Helmick v. Cincinnati Word Processing, Inc. (1989), the court held that favorable comments about job performance and discussions of future career development do not, standing alone, change the status of an at-will employee. See also Penwell v. Amherst Hosp.(1992), 84 Ohio App.3d 16, where the court found that in hiring a new employee, the expectation of both the employer and employee is that the relationship will be mutually beneficial. The emphasis is usually on the positive and not the negative. In explaining infractions with lead to automatic termination, an employer does not implicitly limit its ability to terminate an employee at will. In order to defeat a motion for summary judgment on the issue of an implied contract of employment, the appellant was required to establish the exchange of bilateral promises, consideration and mutual assent. Nichols v. Ryder Truck Rental, Inc. (1994), Cuyahoga App. No. 65376, unreported. The appellant has failed to met the high burden required to show that the appellee breached an implied contract. -8- In an attempt to demonstrate an implied contract, the appellant relies on the `tradition' of the YMCA. The appellant cites to the 1983 handbook and the language therein as evidence that the YMCA agreed to use a performance-based standard prior to termination of employment. The appellant misinterprets the language of the handbook. A statement that an individual shall have employment so long as the relationship is mutually satisfactory is not a guarantee of employment or a statement that discharge may be only for cause. Mutually satisfactory means what it says, either party may terminate the relationship at any time it becomes unsatisfactory, the at-will status of the employee is preserved. No parameters are given as to what is satisfactory and what is unsatisfactory. Thus, where the organization determined that the department was to be eliminated, it may be said that the employer found the relationship was no longer satisfactory. Next, in order to demonstrate the `tradition' of the YMCA to terminate employment only for cause, the appellant relies on his conversations with his supervisors and co-workers and his experience as a long-time employee. There is no evidence that these conversations were a promise of future employment, rather the conversations revolved around reasons to forego a potential higher salary with another employer and remain at the YMCA in hopes of retiring with advantageous retirement benefits. The appellant fails to cite to any unambiguous and specific promise made by the YMCA to retain his services, fails to present evidence that he assumed any -9- additional responsibility, and failed to demonstrate mutual assent to the implied contract. The appellant next assails the business decision of the YMCA, arguing that outsourcing his job responsibilities actually cost more than retaining his services. The YMCA based its business decision on a lengthy study, and subsequently determined that a reduction in force was needed. At least one court has found that a reduction in force is a termination for just cause. See Stull v. Combustion Engineering, Inc. (1991), 72 Ohio App.3d 553. Thus, even if this court found an implied contract in existence, the appellant was terminated for cause. The appellant's first assignment of error is overruled. The second assignment of error: THE TRIAL COURT ERRED IN DETERMINING THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO PLAINTIFF'S PROMISSORY ESTOPPEL CLAIM. The appellant argues that there is a question of fact as to whether he has demonstrated the existence of a promise or representation made by the appellee that he would be employed until his retirement and has demonstrated his detrimental reliance on that promise. Mr. Krause asserts that he relied on the representations of his supervisors that a generous pension awaited him at the age of 65 and that based upon these representations he did not pursue other employment opportunities which were open to him in 1970 and 1974. In Mers, supra, the Supreme Court held at syllabus 3: The doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. The -10- test in such cases is whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee. Subsequently, in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, the court held that a promise of future benefits or opportunities without a specific promise of continued employment does not support a promissory estoppel exception to the well established doctrine of employment at-will. In Wing, the court cited to Helmick, supra, and reiterated that standing alone, praise with respect to job performance and discussion of future career development will not modify the employment at-will relationship. In the case sub judice, the appellant has failed to demonstrate that any specific promises of future employment were made to him by the appellee. Rather, the appellant asserts that there were discussions of future retirement benefits. These discussions, in the absence of a promise of future employment, are not sufficient to support a promissory estoppel exception to the employment at-will doctrine. The appellant's second assignment of error is overruled. The third assignment of error: THE TRIAL COURT ERRED IN DETERMINING THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO PLAINTIFF'S CLAIM FOR AGE DISCRIMINATION. The appellant argues that there is sufficient evidence of discriminatory intent such that the trial court should have denied the motion for summary judgment. The appellant cites to one instance of a comment made by Greenauer that old people shouldn't -11- walk upstairs so fast. In addition, Greenauer increasingly isolated the appellant and reduced his job responsibilities. Greenauer also clearly indicated that he had no need for any information the appellant might have on how the YMCA had conducted business in the past. The appellant asserts that he has demonstrated that the reduction in force was a pretext for age discrimination since the need for preventative maintenance still exists, but that the YMCA has chosen to subcontract out for these services. While the appellant describes his reduction in job responsibilities and his ultimate termination as age discrimination, the appellee characterizes its actions as a reduction in force. In the complaint, Mr. Krause alleges age discrimination based upon both R.C. 4112.02(A)(N) and R.C. 4112.14. R.C. 4112.02(A) states, in part, that it shall be an unlawful discriminatory practice for an employer, based on age, to discharge without just cause, to refuse to hire, or otherwise to discriminate against a person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. Subsection (N) states that a person may file a civil action on this basis within two years of the alleged unlawful discriminatory practice and that the litigant is barred from then instituting a civil action pursuant to R.C. 4112.14. R.C. 4112.14 prohibits age discrimination by employers and prohibits employers from discharging without cause an employee over age forty who is physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining -12- to the relationship between employer and employee. A litigant is barred from instituting a civil action under both R.C. 4112.14 and division (N) of R.C. 4112.02. In Byrnes v. LCI Communications Holding Co. (1996), 77 Ohio St.3d 125, the court refined the four requirements a plaintiff must demonstrate to show age discrimination: 1) membership in the statutorily-protected class; 2) discharge from employment; 3) qualifications for the position; and, 4) replacement by, or retention of, a person to belonging to the protected class. Byrnes citing to Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578; Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146; McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792. The Supreme Court has found that discriminatory intent may also be established by direct evidence of age discrimination. Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501. A plaintiff may establish a prima facie case by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent. Mauzy, supra. Thus, where the litigant has not met the four-part test, other evidence may be introduced to illustrate discriminatory intent. Here,it is first noteworthy that the appellant has failed to present a prima facie case for age discrimination since he was not replaced by a person outside of the protected class. Even assuming that the subcontractor who assumed the responsibilities of any preventative maintenance should be considered as the appellant's -13- replacement, the appellant has failed to even allege that Mr. Chuck Steidel is under age forty. The appellant therefore must attempt to demonstrate that his discharge was more likely than not motivated by discriminatory intent by presenting evidence of age discrimination. The appellant cites to one isolated remark regarding his prowess in climbing stairs. While this remark may be characterized as inappropriate and insensitive, it is insufficient as a basis for a claim of age discrimination. Byrnes, supra, at 129. Next, the appellant asserts that the reduction in authority and the eventual outsourcing of his job responsibilities are indicative of a discriminatory intent. The appellee characterizes its actions as facially neutral since it was a reduction in force and the entire department was eliminated. The appellee has supported this position with a lengthy study, done by professional architects and engineers, which, at least in part, evaluated the physical plant of the YMCA and its maintenance. The appellant's speculations to the contrary are not sufficient to overcome a motion for summary judgment where the appellee has presented significant evidence of a legitimate, nondiscriminatory business reason for its actions. See Bellian v. Bicron Corp. (1994), 69 Ohio St.3d 517. The interpretation of the Safe and Sound study involves a business decision, and the appellant has failed to demonstrate that the elimination of the preventative maintenance department was more likely than not motivated by discriminatory intent. The appellant's third assignment of error is overruled. -14- Judgment affirmed. -15- 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. Exceptions. TERRENCE O'DONNELL, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .