Opinion
Case No. 3:03CV7752.
July 16, 2004
ORDER
This suit arises from the employment termination of plaintiff Richard W. Bratton by defendant Lima Communications Corp. ("Lima"). Plaintiff filed seven counts: age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 630(h), age discrimination pursuant to O.R.C. § 4112.02, breach of contract, breach of implied contract, promissory estoppel, intentional infliction of emotional distress, and violation of public policy.
Pending is defendant's Fed.R.Civ.P. 12(b)(6) motion to dismiss counts two (age discrimination), five (promissory estoppel) and six (intentional infliction of emotional distress). For the reasons that follow, the motion shall be granted.
BACKGROUND
Plaintiff was born on May 22, 1947 and began work as a talk show host for defendant's predecessor in 1967. On or about November 25, 2002, at the age of fifty-five, defendant terminated plaintiff's employment. Plaintiff, an at-will employee, was replaced by a younger female.
STANDARD OR REVIEW
When ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the court reads the complaint in the light most favorable to the complaining party, and all of the complaining party's factual allegations are accepted as true. Dugan v. Brooks, 818 F.2d 513, 516 (6th Cir. 1987). The court's task is to determine not whether the complaining party will prevail on its claims but whether it is entitled to offer evidence to support those claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal is appropriate only if it appears beyond doubt that the complaining party can prove no set of facts in support of the claims that would entitle him or her to relief. Pfennig v. Household Credit Servs., 295 F.3d 522, 525-26 (6th Cir. 2002) (citing Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998)).DISCUSSION A. Count Two — Age Discrimination
Plaintiff alleges an age discrimination claim under Ohio Revised Code §§ 4112.02(A) and (N). Subsection (A) states that it shall be unlawful for an employer to discriminate against an employee on the basis of age. Subsection (N) states that an aggrieved party must enforce the discriminatory act within 180 days after the alleged unlawful act. As defendant points out, however, § 4112.08 states that if plaintiff invokes § 4112.05 of the Ohio Revised Code by filing a charge with the Ohio Civil Rights Commission, then plaintiff is barred from filing under § 4112.02(N). Therefore, plaintiff must elect his remedy, either under § 4112.02(N) or under § 4112.05. Here, plaintiff invoked § 4112.05 by filing with the Ohio Civil Rights Commission, barring any action under § 4112.02.
Furthermore, plaintiff's memorandum in opposition fails to respond to defendant's motion to dismiss count two. Because plaintiff has failed to respond, this court may grant defendant's motion to dismiss.
Local rule 7.1(g) of the Northern District of Ohio states: "The Judicial Officer may rule on unopposed motions without hearing at any time after the time for filing an opposition has expired."
Defendant's motion to dismiss plaintiff's § 4112.02 age discrimination claim shall, therefore, be granted.
B. Count Five — Promissory Estoppel
To bring a promissory estoppel claim, plaintiff must allege: 1) a promise, clear and unambiguous in its terms; 2) reliance by the party to whom the promise is made; 3) that the reliance was reasonable and foreseeable; and 4) the party claiming estoppel was injured by the reliance. Healey v. Republic Powered Metals, Inc., 85 Ohio App.3d 281, 284 (1992).
Courts have applied the doctrine of promissory estoppel to at-will employees. For such employees, the test 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." Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 105 (1985).
Here the issue is whether a promise existed on which plaintiff can assert the doctrine of promissory estoppel. Plaintiff alleges that he entered into a written employment agreement based on defendant's employee handbook, which stated that age would not be the basis for employment. (Doc. 1, at ¶ 28). Plaintiff contends he "rightfully relied and acted upon his reasonable belief that he would continue to be employed under these terms pursuant to the agreement." Id. Specifically, plaintiff alleges he did not seek employment elsewhere based on this agreement. (Doc. 1, at ¶ 24).
While courts have stated that employee handbooks may be evidence of employment contracts, see Kelly v. Georgia-Pacific Corp., 46 Ohio St.3d 134, 139 (1982) (citing Hedrick v. Center for Comprehensive Alcoholism Treatment, 7 Ohio App.3d 211 (1982)), in this case the handbook expressly states that the it is "provided for our employees' information only, and does not confer any rights or privilege nor create a promise of employment for any length of time." (Doc. 1, exh. D, at 1). Plaintiff's complaint contains no other allegation of an explicit promise of continued employment.
Defendant cites Welch v. Finlay Fine Jewelry Corporation, No. 01AP-508, 2002 WL 206047, *1 (Ohio Ct.App. Feb. 12, 2002) in support of its motion to dismiss. In Welch, the plaintiff, an at-will employee of defendant's jewelry store, was terminated for violating the defendant's policy of leaving the safe unlocked during business hours. Id. Plaintiff alleged that he was wrongfully terminated because other employees had also left the safe unlocked during business hours and had not been terminated. Id. Plaintiff presented defendant's handbook that listed insubordination as a terminable offense. Id. at *3. Plaintiff's belief was that if failure to follow defendant's instructions resulted in termination, then compliance with instructions was an implicit promise for continued employment. Id. The court in Welch found this "subjective" argument unpersuasive and stated that no specific promise of continued employment was ever presented. Id.; see also Wing v. Anchor Media, Ltd., 59 Ohio St.3d 108, 110-111, (1991) ("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 this case, plaintiff was an at-will employee. He has failed to allege a specific promise of continued employment. Defendant's motion to dismiss on the issue of promissory estoppel shall, therefore, be granted.
C. Count Six — Intentional Infliction of Emotional Distress
Plaintiff contends he suffered severe emotional distress following defendant's termination of his employment. Specifically, plaintiff claims his termination caused "embarrassment, mental anguish, loss of reputation, loss of self-esteem, harm to plaintiff's relationship with his family, and other emotional distress. . . ." (Doc. 1, at ¶ 44). Plaintiff was asked to remove all personal items from his desk. (Doc. 1, at ¶ 11). Plaintiff alleges that defendant acted willfully in terminating his employment and, as a result, plaintiff "suffered damages." (Doc. 1, at ¶ 48). I conclude plaintiff can prove no set of facts in support of his claim.
As stated in Yeager v. Local Union 20, 6 Ohio St.3d 369, 374 (1983), "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability." To be deemed extreme and outrageous, the defendant's behavior must "go beyond all possible bounds of decency, and . . . be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 375. The conduct must be such that "an average member of the community" would consider it outrageous. Id.
In support of his complaint plaintiff cites Pater v. Health Care and Retirement Corp., 808 F. Supp. 573, 579 (S.D. Ohio 1992). In Pater, an employee claimed that on her return from forced medical leave, her office had been stripped, her belongings had been placed in a box, and her replacement's name had been posted on her office door. Id. In addition, she was harshly warned not to resist her employer's efforts to terminate her. Id. The court held that plaintiff alleged sufficient facts to state a claim for intentional infliction of emotional distress. Id.
In this case, plaintiff was only told "to remove all personal items from his desk" (Doc. 1, at ¶ 11), a common practice that when an employee is terminated. Such conduct is not so extreme and outrageous to go beyond all possible bounds of decency or be intolerable to society. This situation is distinguishable from the circumstances in Pater. First, the employee in Pater had not been notified that she was terminated; indeed, she anticipated returning to work after medical leave. Second, on her return, she did not anticipate finding her name plate removed, her personal belongings in a box, and a threat that she not contest her termination.
In addition, embarrassment, loss of self-esteem, mental anguish, and reputation damage are natural and normal effects of employment termination. These allegations are routine, albeit unwelcome and stressful, components of the loss of one's job. As noted in Shinholster v. Akron Automobile Association, Inc., 711 F. Supp. 357, 365 (1989), "an employee naturally suffers some degree of emotional distress upon termination of her at-will employment." Thus, I conclude that plaintiff has failed to allege any material facts sufficient to support his claim for intentional infliction of emotional distress.
Defendant's motion to dismiss plaintiff's claim for intentional infliction of emotional distress shall, therefore, be granted.
CONCLUSION
In light of the foregoing, it is
ORDERED THAT defendant's motion to dismiss plaintiff's claims of age discrimination under O.R.C. § 4112, promissory estoppel, and intentional infliction of emotional distress be, and the same hereby is granted.
So ordered.