[Cite as Sims v. Midvale, 2012-Ohio-6081.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
DIANA SIMS                                    :   Patricia A. Delaney, P.J.
                                              :   John W. Wise, J.
                        Plaintiff-Appellant   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 2012 AP 03 0021
                                              :
                                              :
VILLAGE OF MIDVALE, et al.,                   :   OPINION

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                           Civil Appeal from Tuscarawas County
                                                   Court of Common Pleas Case No.
                                                   2010 CT 10 1128

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            December 18, 2012

APPEARANCES:

For Plaintiff-Appellant                            For Defendants-Appellees

E.K. WRIGHT                                        WILLIAM E. PFAU, III
134 FOURTH STREET, N.W.                            Pfau, Pfau & Marando
P.O. Box 711                                       P.O. Box 9070
New Philadelphia, Ohio 44663                       Youngstown, Ohio 44513
[Cite as Sims v. Midvale, 2012-Ohio-6081.]


Edwards, J.

        {¶1}    Plaintiff-appellant, Diana Sims, appeals from the February 22, 2012,

Judgment Entry of the Tuscarawas County Court of Common Pleas granting the Motion

for Summary Judgment filed by defendants-appellees Village of Midvale, Larry Eggerton

and Ron McComb.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    Appellant Diana Sims started working for appellee Village of Midvale in

1991 as the village clerk.          In 1993, she became a clerk in the water department.

Appellant was an at-will employee.

        {¶3}    In 2004, appellee Village of Midvale adopted a Personnel Policies and

Procedures manual. Appellant received a copy of such manual which, on the top of the

front page states in bold face, in relevant part, as follows: “These policies are not to be

considered an employment contract with any employee.”

        {¶4}    As of August of 2004, appellant was working 19 hours a week at the water

department, which was also known as the Board of Public Affairs.           At some point,

appellee Village of Midvale made a deal to take over the Village of Roswell’s water

department. As a result, appellant, as a clerk in the water department, would have to

handle the clerical duties associated with approximately 100 additional customers, in

addition to the 850 customers that appellee Village of Midvale already had, without any

additional compensation.

        {¶5}    At least a week before her termination from employment, the clerk from

the Roswell Water Department brought in a big stack of papers and told appellant that

she was “supposed to do this.” Transcript at 24. The clerk provided appellant with
Tuscarawas County App. Case No. 2012 AP 03 0021                                         3


envelopes that she indicated were deposits. Appellant put the envelopes in the safe. A

week or so before her termination, Ron McComb, a Trustee of the Board of Public

Affairs, asked appellant what she had done with the deposits. Appellant then told him

that they were in the safe. Appellant, during her deposition, testified that after McComb

asked her if she would make the deposits, she told him that she would not. Appellant

testified that she did not recall giving him any reason for her refusal to make the

deposits.

      {¶6}   Subsequently, on August 4, 2010, McComb and Larry Eggerton, two of

the Trustees of the Board of Public Affairs, came into appellant’s office and she told

them that she would not handle the Roswell accounts. Appellant then asked Eggerton

about his alleged statements to her husband (the water department superintendent) that

appellant deserved a raise. After Eggerton denied making such statements, appellant

“took the papers and just kind of shoved them--…on the floor.” Transcript at 37.

Appellant was then fired for insubordination for throwing the papers on the floor.

Appellant testified that she told the men that she did not have the time or the room to do

the Roswell work and that “I felt it was going to be a lot of extra work with no

compensation.” Transcript at 40. She told them that she was not going to do the work

until she got more money.

      {¶7}   On October 6, 2010, appellant filed a complaint against appellees in the

Tuscarawas County Court of Common Pleas. Appellant, in her complaint, alleged that

she was wrongly terminated, alleging causes of action sounding in violation of public

policy, implied and expressed contract and promissory estoppel. On June 17, 2011,
Tuscarawas County App. Case No. 2012 AP 03 0021                                            4


appellees filed a Motion for Summary Judgment. Pursuant to a Judgment Entry filed on

February 22, 2012, the trial court granted appellees’ motion.

       {¶8}   Appellant now raises the following assignments of error on appeal:

       {¶9}   “I. THE TRIAL COURT IMPROPERLY GRANTED THE DEFENDANTS

MOTION FOR SUMMARY JUDGMENT NOTWITHSTANDING A JURY ISSUE

EXISTED AS TO WHETHER DEFENDANTS HAD AUTHORITY TO DISMISS AND

WHETHER DEFENDANT MIDVALE’S EMPLOYEES FAILED TO FOLLOW ITS SELF-

IMPOSED REGULATIONS.

       {¶10} “II. THE TRIAL COURT FAILED TO RECOGNIZE THAT THE SELF-

IMPOSED LEGISLATION OF DEFENDANT MIDVALE PROHIBITED DEFENDANTS

MCCOMB AND EGGERTON FROM DISMISSING PLAINTIFF.”

                                                I, II

       {¶11} Appellant, in her two assignments of error, argues that the trial court erred

in granting summary judgment in favor of appellees. We disagree.

       {¶12} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As

such, we must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary

judgment shall be rendered forthwith if the pleadings, 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. * * * A summary judgment shall not be rendered unless it
Tuscarawas County App. Case No. 2012 AP 03 0021                                            5


appears from the evidence or stipulation, and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, that party being entitled

to have the evidence or stipulation construed most strongly in the party's favor.”

       {¶13} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates the non-moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating there is a genuine issue of material fact for

trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674 N.E.2d 1164, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662 N.E.2d 264.

       {¶14} Appellant, in the case sub judice, argues that the trial court erred in

granting summary judgment in favor of appellees because appellant’s termination was

not in accordance with the Personnel Policies and Procedures manual provided to her.

Appellant argues that under the manual, her supervisors, Eggerton and McComb, did

not have the right to terminate her and she was denied her right to appeal to the Village

of Midvale Council.

       {¶15} However, as a general rule in Ohio, employee handbooks do not

constitute an employment contract. Stembridge v. Summit Acad. Mgmt., 9th Dist. No.
Tuscarawas County App. Case No. 2012 AP 03 0021                                         6

23083, 2006–Ohio–4076, ¶ 27, citing Rudy v. Loral Defense Sys., 85 Ohio App.3d 148,

152, 619 N.E.2d 449 (9th Dist. 1993). The handbook is simply a unilateral statement of

rules and policies creating no obligations or rights. Tohline v. Cent. Trus. Co., 48 Ohio

App.3d 280, 282, 549 N.E.2d 1223 (1st Dist. 1988).

       {¶16} The Ninth District Court of Appeals addressed the issue raised herein in

Stembridge v. Summit Acad. Mgt., supra:

       {¶17} “An employment relationship is terminable at the will of either party unless

expressly stated otherwise. (Citation omitted). Henkel v. Educational Research Council

of Am. (1976), 45 Ohio St.2d 249, 255, 344 N.E.2d 118. However, the employment at-

will doctrine is the subject of two exceptions: (1) the existence of an implied or express

contract which alters the terms of discharge; and (2) the existence of promissory

estoppel where representations or promises were made to an employee. Mers v.

Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104, 483 N.E.2d 150. Appellant has

argued that his employee handbook constitutes an exception to the employment-at-will

doctrine.

       {¶18} “Generally, employee handbooks do not constitute an employment

contract. Rudy v. Loral Defense Sys. (1993), 85 Ohio App.3d 148, 152, 619 N.E.2d 449.

This Court has previously held that “‘employee manuals and handbooks are usually

insufficient, by themselves, to create a contractual obligation upon an employer.’”

Gargasz v. Nordson Corp. (1991), 68 Ohio App.3d 149, 155, 587 N.E.2d 475, quoting

Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 591 N.E.2d 752.

Evidence of an employee handbook may be considered when deciding whether an
Tuscarawas County App. Case No. 2012 AP 03 0021                                            7

implied contract exists, but its existence alone is not dispositive of the question. Wright

v. Honda of Am. Mfg., Inc. (1995), 73 Ohio St.3d 571, 574–575, 653 N.E.2d 381.

       {¶19} “In Karnes v. Doctors Hospital (1990), 51 Ohio St.3d 139, 141, 555 N.E.2d

280, the Ohio Supreme Court held that an employee handbook that expressly

disclaimed any employment contract could not be characterized as an employment

contract. This Court has also addressed disclaimers and found that “‘[a]bsent 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.’” Westenbarger v. St. Thomas Med. Ctr. (June 29, 1994), 9th

Dist. No. 16119, at 7, quoting Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio

St.3d 108, 570 N.E.2d 1095, paragraph one of the syllabus.” Id. at paragraphs 26–28.

       {¶20} In the case sub judice, appellant was an at-will employee. The Personnel

Policies and Procedures manual provided to appellant clearly stated at the top in bold

face that the polices “are not to be considered an employment contract with any

employee.” The manual further provides, in Section 1.16, that the “Village of Midvale

Council, at its option, may change, delete, suspend or discontinue any or parts of the

policies in this document at any time without prior notice…” We find, based on the

foregoing, that the trial court did not err in finding that appellant was an at-will employee

and that the trial court did not err in granting summary judgment in favor of appellees on

appellant’s contract claims.

       {¶21} We further find that the trial court did not err in granting summary

judgment to appellees on appellant's promissory estoppel claim. The elements

necessary to establish a claim for promissory estoppel are: (1) a promise clear and
Tuscarawas County App. Case No. 2012 AP 03 0021                                            8


unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the

reliance must be reasonable and foreseeable; and (4) the party claiming estoppel must

be injured by the reliance. Schepflin v. Sprint-United Telephone of Ohio, 5th Dist. No.

96-CA-62-2, 1997 WL 1102026, 3-4 (April 29, 1997), citing Stull v. Combustion

Engineering, Inc. , 72 Ohio App.3d 553, 557, 595 N.E.2d 504 (3rd Dist. 1991).

       {¶22} Upon our review of the record, we find no evidence that appellees made

any promises of continued employment to appellant independent of the Personnel

Policies and Procedures manual. We note that appellant, in her brief, does not argue

that any such promises were made.

       {¶23} Appellant, in her complaint, further alleged that her termination was in

violation of public policy. A cause of action for wrongful discharge in violation of public

policy sounds in tort. Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d

228, 551 N.E.2d 981 (1990), paragraph three of the syllabus. A plaintiff must prove the

following elements to prevail on such a claim: (1) a clear public policy exists and is

manifested in a state or federal constitution, in statute or administrative regulation, or in

the common law (the clarity element), (2) dismissing employees under circumstances

like those involved in the plaintiff's dismissal would jeopardize the public policy (the

jeopardy element), (3) the plaintiff's dismissal was motivated by conduct related to the

public policy (the causation element), and (4) the employer lacked an overriding

legitimate business justification for the dismissal (the overriding-justification element).

Collins v. Rizkana, 73 Ohio St.3d 65, 69–70, 652 N.E.2d 653 (1995). The clarity and

jeopardy elements involve questions of law; the causation and overriding-justification

elements involve questions of fact. Id. at 70.
Tuscarawas County App. Case No. 2012 AP 03 0021                                           9


       {¶24} In the case sub judice, appellant has not presented any argument or

evidence in support of her assertion that her termination was in violation of public policy.

As noted by appellees, appellant has not argued the public policy claim in this appeal.

       {¶25} Based on the foregoing, we find that the trial court did not err in granting

summary judgment in favor of appellees.

       {¶26} Appellant’s two assignments of error are, therefore, overruled.

       {¶27} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas is affirmed.




By: Edwards, J.

Delaney, P.J. and

Wise, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                 JUDGES

JAE/d1003
[Cite as Sims v. Midvale, 2012-Ohio-6081.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


DIANA SIMS                                       :
                                                 :
                           Plaintiff-Appellant   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
VILLAGE OF MIDVALE, et al.,                      :
                                                 :
                     Defendants-Appellees        :       CASE NO. 2012 AP 03 0021




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas is affirmed.                Costs

assessed to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
