holding that promises regarding "future benefits or opportunities" were not sufficient to constitute specific promises of continued employmentSummary of this case from Skalka v. Fernald Environmental Restoration
Submitted February 20, 1991 —
Decided April 24, 1991.
Contracts — Employer and employee — Disclaimer in employee handbook stating employment is at will precludes employment contract other than one at will — Promissory estoppel exception to employment-at-will doctrine not applicable, when — Civil procedure — Motion for summary judgment forces non-moving party to produce evidence on issue for which that party bears the burden of production at trial — Discharge for bringing wrongdoing to attention of employer — R.C. 4113.52 applied prospectively only.
O.Jur 3d Employment Relations §§ 28, 42, 152.5
1. Absent fraud in the inducement, a disclaimer in an employee handbook stating that employment is at will precludes an employment contract other than at will based upon the terms of the employee handbook.
2. A promise of future benefits or opportunities without a specific promise of continued employment does not support a promissory estoppel exception to the employment-at-will doctrine. ( Helmick v. Cincinnati Word Processing, Inc., 45 Ohio St.3d 131, 543 N.E.2d 1212, construed and applied; Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, distinguished.)
O.Jur 3d Summary Judgment § 36.
3. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. ( Celotex v. Catrett, 477 U.S. 317, approved and followed.)
4. R.C. 4113.52 establishes guidelines by which an employee can bring illegal activity by either the employer or a co-employee to the attention of the employer or appropriate authorities without being discharged. R.C. 4113.52 may only be applied prospectively pursuant to the presumption of prospective operation contained in R.C. 1.48.
APPEAL from the Court of Appeals for Franklin County, No. 89AP-845.
Taft Broadcasting Company ("Taft") hired Charles R. Wing on June 17, 1985, as vice president and general manager of WTVN, a television station in Columbus, Ohio. On October 7, 1987, TFBA Sub., Ltd. ("TFBA"), a limited partnership, purchased WTVN from Taft and entered into a management arrangement with Anchor Media, Ltd. of Texas ("Anchor"), whereby Anchor operated the station. Around this time, Anchor changed the call letters of the station to WSYX. TFBA subsequently transferred ownership of WSYX to Anchor on December 7, 1987.
Anchor retained Wing as general manager of WSYX. Upon Wing's becoming an employee of Anchor, Anchor gave Wing an employee handbook that, along with expressing what is expected of employees, included a disclaimer stating that employees may be discharged "for the convenience of the Station." Wing also signed an "Employee's Statement of Confirmation," which, among other things, unequivocally stated that Wing's employment was "terminable at [the] will" of his employer.
The "Employee's Statement of Confirmation" signed by Wing reads:
"This is to certify that I have received a copy of the Anchor Media Ltd. Personnel Policy and Procedures Handbook and that I have read it carefully. I understand all of its rules and policies and agree to abide by them. I understand and agree that any provision of this Policy Handbook and any benefit package may be amended or revised at any time by the company without prior notice. The Employee recognizes and acknowledges that the confidential and proprietary information of Employer is a valuable, special and unique asset of Employer's business. The Employee will not, during or after the term of his/her employment, disclose such information or any part thereof to any person, firm, corporation, association or other entity for any reason or purpose whatsoever. I also understand and agree that my employment is terminable at will, so that both the Company and I remain free to choose to end our work relationship at any time[,] subject to any contractual agreement the Company and I have entered into. I further understand and agree that nothing in this Policy Booklet in any way, creates an express or implied contract of employment between the Company and me."
During Wing's tenure with Anchor, Alan Henry, the general partner and chief executive officer of Anchor, and Patrick M. Murphy, vice president of finance and also an equity participant in Anchor, promised Wing the opportunity to purchase equity in WSYX as soon as a new financing package for the station was completed. This representation continued throughout Wing's employment with Anchor.
Wing alleges that he turned down several job opportunities with television stations inside and outside Ohio, operated by his former employer, Taft, and other employers, during his tenure with Anchor. Wing also claims that he expressed concern to Murphy about personal items that Henry expensed to WSYX and other businesses operated by Anchor.
On April 18, 1988, Anchor terminated Wing's employment. Wing then brought suit in the Court of Common Pleas of Franklin County against defendants, Anchor, its affiliates, and TFBA, asserting claims sounding in contract, promissory estoppel, wrongful discharge, and fraud. Defendants subsequently moved for summary judgment, which motion the trial court granted on June 28, 1989, on all claims.
Upon appeal to the court of appeals, Wing asserted that the trial court erred in entering judgment for Anchor, in that there existed material issues of fact as to: whether Wing was induced to continue employment with Anchor through promises of equity participation, whether these promises were fraudulent, whether Anchor breached a written employment contract based upon the employee handbook, and whether Anchor wrongfully discharged Wing in violation of public policy for questioning the propriety of certain management expenses.
The appellate court affirmed the grant of summary judgment in favor of defendants. The court held that the employee disclaimer expressly made clear that Wing was employed at will, rejecting the contract claim based on the employee handbook. The court also held that the promise of equity participation was not a promise of job security and hence did not support a promissory estoppel claim. Additionally, because Wing was terminated prior to the enactment of R.C. 4113.52, public policy did not involve the "whistleblower" exception to the employment-at-will doctrine. Finally, the court held that Wing provided no evidence that Anchor made any fraudulent misrepresentations to him.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Michael H. Gertner and John S. Zonak, for appellant.
Squire, Sanders Dempsey, Thomas E. Palmer and William A. Klatt, for appellees.
Wing appeals the entry of summary judgment against him, arguing that material issues of fact exist concerning his claims against defendants. We disagree. Consequently, we affirm the summary judgment for defendants on all these claims.
Initially we note that Wing's employment with Anchor was, from its inception, terminable at will. In the courts below, Wing asserted that his employment was not terminable at will, but rather was a contract of employment terminable for cause only based upon the terms of the employee handbook.
The trial court and appellate court both held that the disclaimer contained in both the confirmation of employment and the handbook, irrespective of the terms of the handbook, bars the finding of a contract of employment other than an at-will relationship. We agree. Absent fraud in the inducement, a disclaimer in an employee handbook stating that employment is at will precludes an employment contract other than at will based upon the terms of the employee handbook. See Tohline v. Central Trust Co. (1988), 48 Ohio App.3d 280, 549 N.E.2d 1223.
In 1985, we announced a promissory estoppel exception to an employer's unfettered right to discharge an at-will employee. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, at paragraph three of the syllabus. Mers applied traditional promissory estoppel doctrine to an employment setting:
"`"[A] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. * * *"'" Id. at 104, 19 OBR at 265, 483 N.E.2d at 154, quoting Restatement of the Law 2d, Contracts (1973), Section 90.
Recently we shed further light on the nature of a promise that can give rise to a promissory estoppel exception to the employment-at-will doctrine. "Standing alone, praise with respect to job performance and discussion of future career development will not modify the employment-at-will relationship. A demonstration of detrimental reliance on specific promises of job security can create an exception to the employment-at-will doctrine. * * *" (Citation to Mers omitted.) Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 543 N.E.2d 1212, paragraph three of the syllabus.
We find Helmick applicable here. Wing was never promised job security. Although Wing may have thought that the promise of a future opportunity to buy into the station meant job security, such a promise is not a promise of continued employment and, therefore, cannot reasonably be relied upon as such. Rather, such a promise is, at best, a promise relating to career development. Accordingly, we hold 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.
Additionally, Wing did not rely on the promise of future equity participation in a substantial manner. In Mers there was a jury question presented of detrimental reliance of a substantial nature based upon the promise of reinstatement if criminal charges against Mers were "favorably resolved." Mers sought no other employment while he went about the task of fulfilling the condition for reemployment. In the instant case, merely turning down other employment inquiries does not present a jury question of substantial detrimental reliance.
Wing also claims that the promise of future equity participation was made fraudulently to secure his employment only for as long as was necessary to ensure a smooth ownership transition. "* * * The [relevant] elements of fraud are: a) a representation * * *, b) * * * material to the transaction at hand, c) made falsely, * * * d) with the intent of misleading another into relying upon it, e) justifiable reliance upon the representation * * *, and f) a resulting injury proximately caused by the reliance. * * *" Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 23 OBR 200, 491 N.E.2d 1101, paragraph two of the syllabus.
Both the trial court and the appellate court found the third element necessary to establish fraud unproven. Neither court found any evidence that the promise of an opportunity for equity participation was made falsely. In essence, the lower courts found that the promise was one of equity participation if Wing was still with the organization when the financing was completed, and that the record contains no evidence to the contrary. (Anchor subsequently provided equity participation opportunities to other managers in the Anchor system when financing was available).
We agree with the lower courts. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Celotex v. Catrett (1986), 477 U.S. 317, 322-323. See, also, Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 114, 526 N.E.2d 798, 800-801. Wing came forward not with evidence of falsehood, but rather only with the possible inference of falsehood. At best, Wing's argument is that because he was offered a chance at equity participation in the future but was discharged before it occurred, the offer must have been a lie. This is not enough to withstand a motion for summary judgment because, as we stated previously, the promise of future equity participation was not a promise of continued employment. Therefore, Wing's discharge prior to the completion of financing has no bearing on the truthfulness of the promise of future equity participation.
Similarly, the fraud claim asserted by Wing fails for the same reason his promissory estoppel claim fails: a promise of future equity participation is not a promise of continued employment. Wing could not justifiably rely on a promise of future equity participation to mean continued employment. As such, Wing also failed to prove the fifth element of a fraud claim, justifiable reliance, as set forth in Burr, supra.
Lastly, Wing asks this court to recognize a public policy exception to the employment-at-will doctrine for employees discharged for bringing wrongdoing to the attention of their employers.
In Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, a majority of this court announced a public policy exception to the employment-at-will doctrine to protect an employee from discipline for a reason prohibited by statute. Id. at paragraphs one and two of the syllabus. R.C. 4113.52 established guidelines by which an employee can bring illegal activity by either the employer or a co-employee to the attention of the employer or appropriate authorities without being discharged. However, R.C. 4113.52 was enacted on June 29, 1988, over two months after wing's discharge. Because R.C. 4113.52 is not expressly retrospective in its operation, R.C. 1.48 requires the presumption that it is prospective in its operation only. See Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. Therefore, Anchor's dismissal of Wing could not have violated R.C. 4113.52.
Wing has not argued or produced any evidence to demonstrate that the provisions of R.C. 4113.52 bar his dismissal.
Nevertheless, Wing emphasizes language in Greeley suggesting there may be other public policy exceptions to the employment-at-will doctrine beyond violations of statutes and asks us to find one here. We choose not to do so on the basis of these facts.
Accordingly, the trial court appropriately entered summary judgment in favor of defendants, and the judgment of the court of appeals is hereby affirmed.
MOYER, C.J., SWEENEY, HOLMES, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., dissents.