[Cite as Cozzuli v. Sandridge Food Corp., 2011-Ohio-4878.]


STATE OF OHIO                    )                           IN THE COURT OF APPEALS
                                 )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

ANTHONY COZZULI                                              C.A. No.   10CA0109-M

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
SANDRIDGE FOOD CORP.                                         COURT OF COMMON PLEAS
                                                             COUNTY OF MEDINA, OHIO
        Appellee                                             CASE No.   10CIV0020

                                DECISION AND JOURNAL ENTRY

Dated: September 26, 2011



        WHITMORE, Presiding Judge.

        {¶1}    Plaintiff-Appellant, Anthony Cozzuli, appeals from the judgment of the Medina

County Court of Common Pleas, granting summary judgment in favor of Defendant-Appellee,

Sandridge Food Corp. (“Sandridge”). This Court affirms.

                                                      I

        {¶2}    Cozzuli began working as a mechanic for Sandridge on January 23, 2005.

Cozzuli was fifty-five years old when Sandridge hired him and had previously worked for

several other companies, primarily performing electrical maintenance. Approximately three

other individuals worked with Cozzuli on third shift in Sandridge’s Maintenance Department at

any given time, but Cozzuli earned a higher hourly rate than his fellow mechanics because of his

prior experience. He received a raise after his first ninety days with Sandridge. Additional raises

were contingent upon performance reviews, which Sandridge had its supervisors conduct

annually.
                                                2


       {¶3}    Cozzuli did not receive a raise after his October 2006 performance review. The

following summer he applied for a job with another company, partially due to issues he was

having with his supervisor and his dissatisfaction with his hourly rate. He received a job offer in

August 2007. Cozzuli agreed to forgo the offer, however, after Sandridge offered him the raise

he had not received earlier in the year and assured him that there were plans to transfer his

supervisor elsewhere. The transfer took place in the spring of 2008.

       {¶4}    From November 2006 until his July 7, 2008 termination date, Cozzuli received

negative feedback from his supervisors on multiple occasions.           Specifically, both of the

individuals who supervised Cozzuli over the course of his employment at Sandridge had

concerns that he was not performing at the same level as other mechanics, despite his additional

experience. Cozzuli also took unauthorized smoke breaks, arrived late for scheduled meetings,

and failed to meet many of the goals he agreed to make an effort to achieve. For instance,

although Cozzuli was told on multiple occasions that he needed to learn how to weld certain

types of piping and repeatedly promised that he would attend a welding class, he never did so

and failed his welding test on more than one occasion. After Cozzuli failed the last welding test,

Sandridge decided to terminate his employment. Cozzuli was fifty-seven years old at the time of

his termination.

       {¶5}    On January 6, 2010, Cozzuli filed a complaint against Sandridge, seeking relief

based on breach of an implied contract, intentional infliction of emotional distress, promissory

estoppel, and age discrimination. Sandridge moved for summary judgment on August 2, 2010,

and Cozzuli filed a memorandum in opposition on August 25, 2010. Subsequently, the court

granted summary judgment in favor of Sandridge on all counts.
                                                  3


        {¶6}      Cozzuli now appeals from the court’s judgment and raises one assignment of error

for our review.

                                                 II

                                         Assignment of Error

        “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
        FAVOR OF THE APPELLEE WHEN GENUINE ISSUE (sic) OF MATERIAL
        FACT EXISTED REGARDING APPELLANT’S CLAIMS.”

        {¶7}      In his sole assignment of error, Cozzuli argues that the trial court erred by

entering summary judgment in favor of Sandridge. We disagree.

        {¶8}      This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. Pursuant to Civ.R. 56(C), summary judgment is

proper if:

        “(1) No genuine issue as to any material fact remains to be litigated; (2) the
        moving party is entitled to judgment as a matter of law; and (3) it appears from
        the evidence that reasonable minds can come to but 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.” Temple v.
        Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

The party moving for summary judgment bears the initial burden of informing the trial court of

the basis for the motion and pointing to parts of the record that show the absence of a genuine

issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the

moving party must support the motion by pointing to some evidence in the record of the type

listed in Civ.R. 56(C). Id. Once this burden is satisfied, the non-moving party bears the burden

of offering specific facts to show a genuine issue for trial. Id. at 293. The non-moving party

may not rest upon the mere allegations and denials in the pleadings but instead must point to or

submit some evidentiary material that demonstrates a genuine dispute over a material fact.

Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735.
                                                4


       {¶9}   Cozzuli argues that summary judgment was inappropriate because genuine issues

of material fact remain. In his brief, he separately addresses his claims for age discrimination

and intentional infliction of emotional distress, but consolidates his argument as to his implied

contract and promissory estoppel claims. We tailor our analysis accordingly.

Age Discrimination

       {¶10} An employer engages in an unlawful discriminatory practice when it terminates

an employee, absent just cause, because of the employee’s age. R.C. 4112.02(A). A specific

statutory cause of action exists for employees who are at least forty years of age and suffer

discrimination as a result of an unlawful discriminatory practice. R.C. 4112.14(B). That statute

provides that “[n]o employer shall *** discharge without just cause any employee aged forty or

older who is physically able to perform the duties and otherwise meets the established

requirements of the job and laws pertaining to the relationship between employer and employee.”

R.C. 4112.14(A).

       “In the absence of direct evidence of discrimination, a plaintiff alleging age
       discrimination must establish a prima facie case using indirect evidence, by
       demonstrating (1) that he is a member of a protected class; (2) that he was
       qualified for the position in question; (3) that he suffered an adverse employment
       action despite his qualifications; and (4) that he was replaced by a person of
       substantially younger age. If the plaintiff successfully establishes a prima facie
       case of age discrimination, the employer must articulate a legitimate,
       nondiscriminatory justification for the employment action. The plaintiff may then
       prove by a preponderance of the evidence that the justification articulated by the
       employer is a pretext for discrimination. At all times, however, the ultimate
       burden of persuading the trier of fact that the defendant intentionally
       discriminated against the plaintiff remains with the plaintiff.”           (Internal
       quotations, citations, and alterations omitted.) Welch v. Norton City School Dist.
       Bd. of Edn., 9th Dist. No. 25144, 2010-Ohio-6131, at ¶13.

“The cornerstone of this analysis is whether employment action is the result of discrimination-

not merely whether the action is unfair or the justification questionable.” Price v. Matco Tools,

9th Dist. No. 23583, 2007-Ohio-5116, at ¶31.
                                                 5


       {¶11} No one disputes that Cozzuli was more than forty years old at the time of his

termination or that his termination constituted an adverse employment action. Thus, only two

prongs of Cozzuli’s prima facie case were in dispute. See Welch at ¶13. As the summary

judgment movant, Sandridge bore the burden of showing that no genuine issues existed for trial

on those prongs. Dresher, 75 Ohio St.3d at 292-93. Sandridge’s summary judgment motion,

however, only briefly addressed Cozzuli’s prima facie case and did not set forth any argument as

to the fourth prong. See Welch at ¶13 (requiring, as the fourth prong, a showing that the plaintiff

was replaced by “a person of substantially younger age”). Sandridge concentrated its efforts on

proving that its justification for Cozzuli’s termination was not a pretext for discrimination.

Consequently, we assume for purposes of our discussion that Cozzuli could satisfy his prima

facie burden and limit our analysis to the justification Sandridge offered for his termination.

       {¶12} In support of its motion for summary judgment, Sandridge relied upon Cozzuli’s

deposition testimony and the exhibits introduced during his deposition. Cozzuli admitted in his

deposition that he had problems with both of his supervisors at Sandridge and that he received

negative feedback several times during the course of his employment. Cozzuli’s November 2007

annual performance review listed his job performance as average in most respects, but noted that

his “quality [was] a little below the average mechanic.” Cozzuli signed his performance review

and opted not to write any comments in the “Employee Comments” portion of the paperwork.

He also signed a list of goals for the 2007-2008 year. The goals included that Cozzuli generate

two cost-saving ideas for the company and that he “attend the next available welding class” and

pass a “sanitary pipe weld” test using TIG welding after completing the class. Cozzuli admitted

in his deposition that he never submitted any cost-saving ideas, never took a welding class, and

never passed the welding tests that Sandridge scheduled for him.
                                                6


       {¶13} With regard to the welding test, Cozzuli’s supervisors spoke to him at least once

in April 2008, twice in May 2008, and once in June 2008 about the importance of his learning

how to weld using TIG welding. Sandridge tested Cozzuli on May 2, 2008 and on June 27,

2008. He indicated to his supervisor before the May 2, 2008 test that he knew how to weld, but

failed the test. Further, although he was notified as early as May 9, 2008 that he would be

retested by July 1st, he also failed his second welding test. Cozzuli testified in his deposition

that he never took a welding class because he tried to learn how to weld on his own time from

other Sandridge employees.       He admitted that he never contacted any welding schools to

determine whether TIG welding classes were available. Cozzuli testified that he did not believe

he should have to learn how to perform TIG welding because there were other employees who

could not perform the same skill. He admitted, however, that he agreed verbally and in writing

that he would take a welding class and learn how to perform TIG welding.

       {¶14} Cozzuli also admitted in his deposition that his second manager had several

conversations with him regarding topics ranging from his taking unauthorized smoking breaks on

company time, arriving late for scheduled meetings, failure to properly communicate with the

next shift, and lack of initiative to solve problems on his own before contacting a supervisor.

Moreover, Cozzuli signed a document on June 3, 2008 that, not only notified him of his second

welding test, but included a warning that “[b]y not completing these tasks ***, you are putting

your job in jeopardy.” Sandridge relied upon all the foregoing evidence to demonstrate that it

had adequate justification for terminating Cozzuli and that its justification was not merely a

pretext. Based on all the foregoing evidence, the record supports the conclusion that Sandridge

met its initial Dresher burden on this issue.
                                                  7


       {¶15} Cozzuli relied upon his own affidavit to oppose Sandridge’s motion for summary

judgment. In his affidavit, Cozzuli averred that his performance reviews were “always positive”

and that “there was no program in Medina County for instruction on sanitary welding.” As set

forth above, however, Cozzuli’s performance review did contain negative feedback, and Cozzuli

admitted in his deposition that he never even contacted any welding schools to obtain

information about classes. Neither Cozzuli’s memorandum in opposition, nor his affidavit

explained the inconsistency that exists between the affidavit and Cozzuli’s deposition. As such,

the affidavit did not create a genuine issue of material fact. Byrd v. Smith, 110 Ohio St.3d 24,

2006-Ohio-3455, at ¶28. Accord Stone v. Cazeau, 9th Dist. No. 07CA009164, 2007-Ohio-6213,

at ¶15-16. Both Cozzuli’s memorandum in opposition and brief on appeal contain one blanket

statement, unsupported by any citation or further argument, that the “alleged reasons proffered

by [Sandridge] were not supported by the evidence and are merely a pretext for

discrimination[.]” (Emphasis omitted.) Yet, “a reason cannot be proved to be ‘a pretext for

discrimination’ unless it is shown both that the reason was false, and that discrimination was the

real reason.” Bennett v. Roadway Express, Inc. (Aug. 1, 2001), 9th Dist. No. 20317, at *10,

quoting St. Mary’s Honor Center v. Hicks (1993), 509 U.S. 502, 515. Cozzuli’s unsupported

averment that Sandridge’s reasons for his termination were pretextual does not amount to proof

that Sandridge’s justification was a pretext.

       {¶16} Upon our review of the record, we cannot conclude that the trial court erred by

awarding summary judgment in Sandridge’s favor on Cozzuli’s claim of age discrimination.

Cozzuli’s argument to the contrary lacks merit.
                                                 8


Intentional Infliction of Emotional Distress

       {¶17} “In a case for intentional infliction of emotional distress, a plaintiff must prove (1)

that the defendant intended to cause the plaintiff serious emotional distress, (2) that the

defendant’s conduct was extreme and outrageous, and (3) that the defendant’s conduct was the

proximate cause of plaintiff’s serious emotional distress.” Phung v. Waste Mgt., Inc. (1994), 71

Ohio St.3d 408, 410. This Court has recognized that “[t]ermination of employment, without

more, does not constitute the outrageous conduct required to establish a claim of intentional

infliction of emotional distress, even when the employer knew that the decision was likely to

upset the employee.” Craddock v. Flood Co., 9th Dist. No. 23882, 2008-Ohio-112, at ¶20.

       {¶18} Cozzuli’s termination is the sole evidence upon which he relies in arguing that the

trial court erred by entering summary judgment against him on this claim. As noted supra,

however, termination alone does not establish intentional inflection of emotional distress. Id.

Without any further argument from Cozzuli, this Court will not engage in any additional analysis

with regard to this claim. Cardone v. Cardone (May 6, 1998), 9th Dist. No. 18349, at *8 (“If an

argument exists that can support this assignment of error, it is not this [C]ourt’s duty to root it

out.”). We conclude that the trial court did not err by entering summary judgment against

Cozzuli on his intentional infliction of emotional distress claim.

Implied Contract and Promissory Estoppel

       {¶19} The doctrines of implied contract and promissory estoppel are two exceptions to

the general rule that “employment situations of no fixed duration are presumed to be at-will” and

terminable at any time for any lawful reason. Shetterly v. WHR Health Sys., 9th Dist. No.

08CA0026-M, 2009-Ohio-673, at ¶6-12. A plaintiff seeking to prove the existence of an implied

contract “bears the heavy burden of demonstrating (1) assurances on the part of the employer
                                                9


that satisfactory work performance was connected to job security; (2) a subjective belief on the

part of the employee that he could expect continued employment; and (3) indications that the

employer shared the expectation of continued employment.” Craddock at ¶7. As to promissory

estoppel, this Court has held that:

       “The 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. This exception requires ‘specific representations’ rather than general
       expressions of optimism or good will. Standing alone, praise with respect to job
       performance and discussion of future career development will not modify the
       employment-at-will relationship.” (Internal quotations, citations, and alterations
       omitted.) Shetterly at ¶6.

“Whether a plaintiff proceeds under a theory of implied contract or promissory estoppel, ***

specific representations leading to an expectation of continued employment are essential.”

Craddock at ¶8.

       {¶20} In his deposition, Cozzuli admitted that he received a copy of Sandridge’s

employee handbook when he began working there and signed an “Employee Acknowledgment

and Receipt” that contained the following language: “I understand and agree that *** [n]othing

contained in the Employee Handbook is intended to create, nor shall be construed as creating, an

express or implied contract or guarantee of employment for a definite or indefinite term.”

Cozzuli did not have a written employment contract with Sandridge, but testified that he was led

to believe that he would have long-term employment with the company. He admitted that he

was never told he would only be discharged for just cause. Rather, he based his implied

contract/promissory estoppel theory on the following items: his receipt of a pay raise in exchange

for staying with the company in August 2007; the positive performance reviews he received;

feedback from other Sandridge employees who “seemed satisfied with [his] work”; and a
                                               10


statement made when he was hired that “[t]here shouldn’t be any problem” if he wanted to stay

at Sandridge for the duration of his remaining time in the workforce.

       {¶21} Cozzuli admitted in his deposition that his November 2007 performance review

actually did contain negative feedback and that his direct supervisors repeatedly gave him

negative feedback in person. The only actual statement he alleged to be a promise that his

employment would be long-term was the statement that there “shouldn’t be any problem” with

him spending his remaining time in the workforce there. Yet, Cozzuli could not remember who

made that statement. More importantly, he did not explain why an assertion that something

“shouldn’t” be a problem amounted to an actionable one for purposes of either implied contract

or promissory estoppel. See App.R. 16(A)(7). See, also, Shetterly at ¶11. “Standing alone, ***

discussion of future career development will not modify the employment-at-will relationship.”

Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, paragraph three of the

syllabus. Cozzuli could not point to any specific representation he received that his employment

would be long-term or that he could only be terminated for just cause. See Craddock at ¶8. To

the extent that Cozzuli did receive positive feedback in the course of his employment, the record

does not support the conclusion that it amounted to anything more than an “expression[] of

optimism or good will.” Shetterly at ¶6. Accordingly, we conclude that the trial court did not err

by entering judgment in Sandridge’s favor on Cozzuli’s claims for implied contract and

promissory estoppel. Cozzuli’s sole assignment of error is overruled.

                                               III

       {¶22} Cozzuli’s sole assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
                                                11




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



MOORE, J.
DICKINSON, J.
CONCUR

APPEARANCES:

ERIC D. HALL, Attorney at Law, for Appellant.

JAMES D. KUREK, Attorney at Law, for Appellee.
